### 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. 03-14-00412- CV

R. Z ., a/k/a R. L ., a/k/a R. G., Appellant

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

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -F M- 13- 0016 02, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N R.Z. appea ls the t rial court’s j u d gm en t t erminating her parenta l rig hts to her child, N.Z ., following a jury trial. See Tex. F am. Code § 161.001. I n six points of err or, she challeng es 1 the admission of an exhibi t, the sufficie ncy of the evidenc e to support the trial court’s finding s based

on the jury verdic t, and the appoint m en t o f appellee Texas Depa rtment of Family and Protective Service s as the sole mana g ing c onservator of her child. For

the re asons that follow, we aff irm.
BACK GR OUND R.Z.’ s child N.Z

. was born on J une 3, 2011, in Pennsylvania. R.Z. and her child left Pennsy lvania when N.Z

. was about four months old and went to Florida for approximately 6 months,

We use initials to ref

er to appellant and her child. See Tex. Fam. Code § 109.002(d); Tex. 1 R. App. P. 9.8. The tri al co u rt al s o terminated the pare ntal rig hts of J .R., N.Z .’s fathe r, in the judgme nt, but J .R. did not appear f or the trial a

nd has not appe aled.prior to coming to Texas. After coming to Texas, they lived with family , including R.Z.’ s fathe r and

her sister. T h e Depa rtment beca

me involved with R.Z. and N.Z

. in 2012. Among other incidents, the Depa

rtment rec eived a ref

err al of domestic violence in November 2012. R.Z. had been

arr ested for assault family violence. The Depa rtment also rec eived ref

err als in Dec ember 2012 and J anuar y 2013, and the ref

err als included alleg ations of criminal activity , illega l drug use, and abuse of N.Z. R.Z. was arrested at the beginning of Februa ry 2013 for resisting arre st and for a wa rra nt stemming from assault family violence char g es and spent a few day s in jail. Whil e she was in ja il,

a Depa rtment case worke r met with R.Z. Around this time, R.Z. authorized her mother to be in char g e of N.Z .’s car e. R.Z., howeve r, resumed car e of N.Z

. at some point prior to Marc h 21, 2013.

On Marc h 21, 2013, R.Z. and N.Z

. wer e stay ing in an apar tment with R.Z.’ s sister and her sister’s boy friend. I

n response to a 911 call of a small c hild “ wande ring around by himself,” a police office r went to the apar tment complex and found N. Z. b y h i mself in the parking lot near a busy intersec tion. Acc ording to the office r, N.Z

. “wa s soaking wet with urine, had no pants on, and his shirt was filthy dirty with mud, and he was playing with a stray dog .” Around 30 minutes afte r finding the child, the office r was able to locate the apar tment in which the child was stay ing and to speak with R.Z. Acc ording to R.Z., she and her sister left N.Z

. in her sister’s boy friend’ s car e to run
err ands and N .Z . was a sleep whe n they left. A case worke r for the Depa rtment also was called to the apar tment at that time. The

case worke r asked R.Z. to do a drug test based on the way R.Z. was acting , believing “that she could possibly be on something.” T h e caseworke r repor ted that R.Z. was “consta nt[ ly ] moving up and

2down, s haking , . . . just y elling a nd scre aming for no r eason.” The c asew orker tried to g et R.Z . to do an oral drug test, but she che wed throug h the first swab and then claimed that she had “cotton mouth” as to the sec ond swab so she did not provide a valid sample to test. As a result of t he M ar ch 2013 incident, t he Department removed N.Z. from R.Z.’ s
car e and place d N.Z

. in foster car e. The Depa rtment filed a p etition for termination of pare ntal rig hts, and the Depa

rtment was named the tem p o rar y manag ing conser

vator of N.Z

. R.Z. was order ed to submit to random drug testing and part i cipate in a psy chosocia l evaluation, individual thera py , and basic pare nting classes. During the pendenc y of the case , R.Z. tested positive for amphetamine, methamphetamine, and coca ine, missed drug tests reque sted by the Depa rtment, and

was arre sted and face d pending criminal charg es. R.Z. was involved in phy sical altercations wit h her fathe r in Aug ust 2 0 1 3 and her boy friend in November 2013, both resulting in police involvement. R.Z. was arr ested for assault family violence and interfe renc e with an emer g ency call fo r t h e i n ci d en t in November 2013, but her fathe r did not press char g es as to the August 201 3 incid en t
. As t o v isits with N.Z

. and court-or dere d service s during the pendenc y of the case , R.Z. attended supervised visits with N.Z

. and parti cipated in some of the service s, but she also missed visits and failed to complete the court-or dere d service s by the time of trial. The trial occur

red in J une 2014 beca

use the dismiss al date for the case was extended. At trial, th e witnesses included R .Z ., police officer s who responded t o incidents involving R .Z ., a laboratory direc tor who worke d for the drug testing fac ility that tested specimens provided by R.Z. and her mother, the CASA supervisor assig ned to this case , Depa rtment employ ees, an occupational t h er apist who worke d with N.Z ., a thera pist who worke d with R.Z., and the foster paren t s . R

. Z.

3testified about the various alleg ations and incidents involving the police and the Depa rtment during the time leading up to the Depa rtment’s remova l of N.Z

. throug h trial and to her plans g oing forwa rd. Her plan was to stay with family in Texas temporar ily and then to move to Pennsy lvania to live with her mother. I t was undisputed that R.Z. loved N.Z ., that she had maintained a rela tionship with him, and that she had participated in service s, but that she had not completed the service s. She explained that she l acke d transporta tion. She also denied usi ng illega l drug s and ex plained the positive drug tests as either a mistake by the labora tory or b ec au s e o f diet pills or allerg y medicine that she had take n. The police office rs testified about incidents involving R.Z., inc lu d in g th e M a r c h 2 0 13 i n ci d en t , the alleg ed assaults by R.Z. that occur red in Aug ust and November 2013, as well as a criminal trespass war

ning at a hotel in J anuar

y 2013, alleg ed misdemeanor theft in Aug ust 2013 for “paw n[i ng ]” her fathe r’s sung lasses, and failure to identify in April 2014. The office r who testified about the Aug ust 2013 incident involving assault was dispatched to investigate a phy sical alterc ation betwee n R.Z. and her fathe r. The office r testif i ed t hat the alleg ation was that R.Z. committed ag g rava ted assault with injury to her fathe r an d t h at s h e “had threa tened to kill him” but that no ch ar g es wer e pending beca use her fathe r decide d not to press char g es. The office r who tes t i fi ed about the alt er ca tion betwee n R.Z. and her boy friend in November 2013 testified that R.Z. was
arr ested for assault family violence and i nterfe renc e wit h an emerg ency call. The officer testified that the boy friend ha d a visible bite mark.

Depa rtment employ ees testified about th e ir in v o lv e me n t a

n d o b s e r vations of R.Z. and N.Z ., R.Z.’ s prog ress toward completing service s, and N. Z. ’s car e and place ments in foster car e.

4N.Z . had bee n living with his c urre nt f oster pare nts f

or about a y ear at the time of trial. The f

oster pare nts testified that they wanted to adopt him an d t h at N. Z. was doing well in their home. The CASA supervisor testified ab out her observations of N.Z

. in his curr ent place ment, and she

rec ommended that R.Z.’ s paren t al ri g hts be terminated, explaining her rea sons for the

rec ommendation. I n her opinion, N.Z

. was a “ver y happy child” with his foster family and seeme d “to have a very close bond with ever y one” in his curr ent place ment and she expressed conce rn about R.Z.’ s denia l o f d rug abuse and lack of trea tment and the safe ty of the environment if N.Z

. was returne d to his mot her.

The exhibi ts included the results of the drug testing during the pendenc y of the case
on R.Z. and her mother, repor ts to the court from CASA a nd the Depa

rtment, rec ords from a crisis cente r and from counseling and psy cholog ical ser vices, a nd copies of the misdemeanor c omplaint ag ainst R.Z. conce rning the alleg ed theft in Aug ust 2013, a capia s for her arr est dated May 16, 2014, and a war rant rec all dated J une 11, 2014. L aboratory repor ts show that R.Z. tested positive for drug s in April 2013, Dec ember 2013, and Fe bruar y 2014, and h er mother tested positive in Dec ember 2013. The intake rec ords from the crisis cente r, dated J anuar y 27, 2013, show that R.Z. repor ted that her f ather phy sically

and ver bally abused he r and tha t he abuse d alcohol daily

. The jury found that R.Z.’ s pare ntal rig hts should be terminated based on subsections (D), (E), and (O) of section 161.001(1) of the Family Code and its finding that termination of R.Z.’ s pare ntal rig hts was in the child’s best interest. See id. § 161.001(1)( D), (E), (O), (2). The trial court rende red judgme nt on the jury ’s verdic t. R.Z. filed a motion for new trial, which was denied. This appea l followed.

5ANALYSIS

Adm ission of E xhib it

I n h er fi rs t point of err or, R.Z. contends that the trial court err ed in overr uling her

o b j ection to the admittance of one of the Depa rtment’s exhibi ts. The challeng ed exhi b i t wa s a printout of pa ges fr om a website called “Naughty Reviews.” The pag es have pictures of R.Z. but identify her as “Natalia” and as a “F emale Escort i n Austin Texas.” The contac t information includes a phone number with an are a code from the Pennsy lvania are a, an email addre ss, and cost of service s. R.Z. contends that the exhibi t was not proper ly authenticated, see Tex. R. Evid. 901(a) , and that the prejudice cause d by the exhibi t outweig hed its probative value. See Tex. R. Evid. 403. We reviewa trial c ourt’s decision to admit or ex clude evidence for an abuse of discretion. See I n
re J.P.B. , 180 S.W .3d 570, 575 (Tex. 2005). A trial court abuses its discretion when it acts without reg ard to any g uiding rules or principles. Downer v. Aquamarine Operators , I nc., 701 S.W .2d 238, 241–42 (Tex. 1985).

“The require ment of authenticatio n o r identification as a condition prec edent to admi ssibili ty is satisfied by evidenc e sufficie nt to support a finding that the matter in question is what its proponent claims.” Tex. R. Evid. 901(a) ; In re J.P.B. , 180 S.W .3d at 575; see In re J.A.S. , No. 11-09-00176- CV, 2011 Tex. App. L EXI S 345, at *7–8 (Tex. App.—Eastland J an. 13, 2011, no pet.) (mem. op.) (“Te stimony that a photogr aph is what it purports to be is sufficie nt to authentica te the photo g raph, while the acc urac y of that testimony is a question for the fac tfinder.” ); see also T ex . R. Evid. 401 (def ining rele vant evidenc e), 402 (explaining that rele vant evid en ce g ener ally admissible).

6To support her position that the exhibi t was not proper ly authenticated, R.Z. focuse s

on information on the we bsite that was not acc urate , such as her heig ht. At trial, she testified that she was not awa

re of the website befo re t h e t rial, that she had nothing to do with it, that she has

never used the phone number that was listed, and that someone must have cre ated the profile on the website to humiliate her. R.Z., howeve r, did not dispute that the pag es wer e posted on the website, that t h e p h o t o g raphs on the website wer e of her, or that the email addre ss on the website was her

e-ma il. A Depa

rtment case worke r also testified that the phone number on the website matched the

co n tact number that the Department was provided for R.Z. for several months , and R .Z

. admi t t ed to using the name “Natalia” on a Fa cebook acc ount that she cre ated. Printouts from that Fa cebook

acc ount wer e admitted as an exhibi t witho u t o bjection. Given this evidenc e, the trial court could have conclude d that there was sufficie nt evide n ce to support a finding that the pag es from the website wer e what the Depa rtment purported them to be and, there fore , the trial court did not abuse its discretion by ov er ru l i n g R

. Z. ’s objection to the evidenc e based on lack of authentication. See Tex. R. Evi d. 901(a)

.

R.Z. also contends that the trial court abused its discretion beca use the t ri al co u rt should have excluded the ex hibit under Rule 403. See Tex. R. Evi d. 403. Rule 403 provides that rele vant evidenc e “may be excluded if its probative value is substantial ly outweig hed by the dang er of unfair prejudice .” Id

. (empha sis added)

. “B eca use the best interest of the child must be the court’s primary considera tion in a suit aff

ecting the pare nt-child rela tionship, rule 403 is an extraordinary reme dy that must be used sparing ly .” In r e J. W

. , 113 S.W .3d 605, 612 (Tex.

7App.—Dallas 2003, pet. denied) ; see Trevino v. T exas Dep’t of Protective

and Regulatory Serv

s ., 893 S.W .2d 243, 248 (Tex. App.—Austin 1995, no writ).

To support her position that the exhibi t should have been excluded under Rule 403, R.Z. contends that the Depa rtment improperly char acte rized the website at trial as “an offe r for prostitution” and “an escor t service ” an d fo cu s es on the nature of the photos, showing her “in scantily clad clothes.” The evidenc e from the website, howeve r, was rele vant to the deter mination of whether allowing R

. Z. to reta in her pare ntal rig hts would be in her child’s best interest. See Holley v. Adams , 544 S.W .2d 367, 372 (Tex. 1976) (including , among other fac tors to be considere d, emotional and phy sical dang er to the child now and in the future, plans for the child by the individual or ag ency seeking custody , and ac ts or omissions by pare nt showing that pare nt-child relationship not proper ). Guided by the principle that Rule 403 is an extraordinary reme dy in the context of evidenc e rele vant to a best interest finding , we conclude that the trial court was within its discretion when it overr

uled R.Z.’ s objection to the evidenc e and overr ule R.Z.’ s first point of err or. See In re J.W

. , 113 S.W .3d at 612.
Suf fi ciency of the Evidence Challenges

I n her second throu gh fi fth points of err or, R.Z. challeng es the leg al and fac tual sufficie ncy

of the e vidence to support the trial court’ s findings ba sed on the jury ’s ver dict. Burden of Proof and Standard of Review To t er m i nate pare ntal rig hts, the Depa rtment has the burden to prove one of the predic ate g rounds in section 161.001(1) of the Fa mily C o d e an d that termination is in the best

8interest of the child. See Tex. Fam. Code § 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

. Fa m. Code § 161.206(a) ; see In re J.F.C. , 96 S. W

. 3d 256, 263 (Tex. 2002) (due proce ss require s clea r and convincing standard of

proof in par ental ter

mination cases) . The c lear and convincing sta ndard is “‘that measure or deg ree of proof which will produce in the mind of the trier of fac t a firm belief or conviction as to the truth of 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 )) ; s ee also Tex. Fam. Code § 101.007 (def

ining “ clea

r and c onvincing evidenc e”)

. L eg al sufficie ncy revie w of the evidenc e to support a termination finding require s a court to “look at all the evidence in the l ight most favor able to the findi ng to deter mine whether

a
rea sonable trier of fac t could have f ormed 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 t u al s u ff iciency of the 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 factfinder could rea sonably form a firm belief or conviction about the 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. 2006) (desc ribing fac tual sufficie ncy revie w in context of termination finding and noting t h at ap p ellate court “must g ive due defe renc e to a jury ’s fac tfindings” and “not supplant the jury ’s judgme nt with its own judgment” ). Statutory Predicate Grounds I n her second throug h fourth points of err or, R.Z. challeng es the leg al an d fa ct u al sufficie ncy of the evidenc e to suppor t the trial court’s finding s based on the jury ’s verdic t as to the

9statutory g rounds submitt ed to the jury

. Three statutory g rounds wer e su b m i t t ed t o t he jury

. See

Tex. F am. Code § 161.001(1) (D), ( E), (O ). B eca use termination of a

pare nt’s rig hts c an stand on
one statutory g round plus a best interest finding , we limit our revie w to t h e ev i d ence to support subsection (E)—that the pare nt “eng ag ed in conduct or knowing ly place d the child with persons who eng ag ed in conduct which endang ere d the phy sical or emotional well-be ing of their child.” See id. § 161.001(1)( E); In re A.V. , 113 S.W .3d at 362 (explaining that only one predic ate g round nece ssary to support termination of par ental rig hts when there is also best interest finding ). 2

“‘Enda ng er’ means ‘t o ex p o s e 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, 5 3 3 (Tex

. 1987)). “Althoug h ‘enda ng er’ means more than a threa t of metaphy sical injury or t h e possible ill eff

ects of a less-than-ide al family environment, it is n o t 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 , deliberate, and c onscious course of conduc t by the par ent.” Id.

R.Z. alternatively reque sts that, if this Court finds the evi d en ce i n s ufficie nt as to 2 subsections (D) or (E) but aff irms on other g rou n d s , this Court modify the judgme nt to ref lect its finding s as t o those subsections. We decline to do so. See In re A.V. , 113 S.W .3d 355, 362 (Tex. 2003) (de clining to r eac h other issues ra ised by pare nt). 10To support her position that the evidenc e was insufficient to support a finding under

subsection (E), R.Z. focuse s on her testimony at trial that she left N.Z

. in her sister’s boy friend’ s car e
on Marc h 21, 2013, the day that N.Z . was by himself in the parking lot. Other evidenc e, howeve r, supported a f

inding that she voluntarily left her y oung child unsupervised. The re w as evide nce to support a finding that the boy friend was alre ady at work when R.Z. and her sister left the apar tment. 3 Although R.Z. urg es that a misunderstanding or mis-communication with her sister’s boy friend does not equate to endang ering a child, the jury could have resolved the conflicting evidenc e to conclude that R.Z. voluntar ily

left her child at the apa

rtment unsupervised. R.Z. also urg es that the rele vant time period to deter mine whether there is evidenc e of endang erme nt was t h e t i me period befor e the Depa rtment remove d N.Z

. But evidenc e of her conduct both befor e and afte r the remova l is rele vant to the endang erme nt deter minati on under subsection (E). See Pruitt v. Texas Dep’ t o f F amily & Protective Servs ., No. 03-10-00089- CV, 2010 Tex. App. L EXI S 10272, at *13–14 (Tex. App.—Austin Dec

. 23, 2010, no pet.) (me m. op.) (noti n g t h at rele vant evidenc e to endang erme nt deter mination “may include conduct befor e the child’s birth and both befor e and afte r the ch i l d h as been remove d by the Depa rtment”); see also R o b i n s o n v. Texas Dep’ t of Protective & Regulatory Servs. , 89 S.W .3d 679, 686-87 (Te x . App.—Houston [1st Dist.] 2002, no pet.) (par ent’s illega l drug activity afte r ag ree ing not to commit such acts in plan for reunific ation “esta blished clea

r and convincing proof of the pare nt’s voluntary , deliberate, and c onscious conduct that e ndang ere d the well-be ing of her c hildren”)

.

Acc ording to the Depa

rtment’s repor

t to the court, the boy friend did not rec all being asked 3 to watch N.Z

. on that day , he had never watche d N.Z

. in the past, and R.Z. and N.Z

. had been at his place for one day

. 11Her e, the jury could have cre dited the evidenc e of illega l drug use, domestic violence,

and criminal activity by R.Z. both befor e and a fter N .Z . was re moved to find that R.Z. eng ag ed in

a conscious course o f co n duct that endang ere d her child. See In re J.O.A. , 283 S.W .3d 336, 345 (Tex. 2009) (“[A] pare nt’s use of narc otics and its e ffe ct on his or her ability to pare nt may qualify

as an endang ering course of conduct.” ); In re M.E.-M .N. , 342 S.W .3d at 263 (“A pare nt’s decision to eng ag e in illega l drug use during the pendenc y of a termination suit, when the pare nt is at risk of losing a child, supports a finding that the paren t eng ag ed in conduct that endang ere d the child’s phy sical or emotional well-be ing.” ); In re J.I.T.P. , 99 S.W .3d 841, 845 (Tex. App.—Houston [14t h Dist.] 2003, no pet.) (“D omestic violence, want of self-c ontrol, and propensity for violence may be considere d as evidenc e of endang erme nt.”); In re A.W .T. , 61 S.W .3d 87, 89 (Tex. App.—Amar illo 2001, no pet.) (“[I ]nt entional criminal activity which exposed the pare nt to incar cer ation is rele vant evidenc e tending to establish a course of conduct endang ering the emotional and phy sical well being of the c hild.” (citation omitted)).

R.Z. denied or did not reme mber alterc ations that she had with famil y members, denied using illega l drug s afte r N.Z . was born, pr ovided excuses, including lack of transporta tion, for missing visits, court-or dere d service s, and reque sted drug scre ening , and prese nted evidenc e to support finding s that the drug testing fac ility made a mistake or that she tested positive be cause of diet pills and allerg y medicine. She prese nted evidenc e of a neg ative drug test that had overla pping time periods with a positive drug test. The jury , howeve r, could have cre dited the evide n ce of positive drug tests that did not overla p with the neg ative test and the evidenc e that R.Z. eng ag ed in other criminal activity , including assault on multipl e occasions. T h e exhibi ts included the results

12of drug tests showing that R.Z. tested positive for drug s in April 2013, Dec ember 2013, and Fe bruar y 2014. Although some drug tests wer e neg ative, the labora tory direc t or for the testing fac ility provided an explanation f or why the drug tests w ith ove rlapping time periods could have differ ent results and confirme d that other drug tests showed that R.Z. had inge sted methamphetamine during the pende ncy

of this case

. R.Z. also had pending criminal char g es ag ainst her at the time of trial, and she missed drug tests reque sted by the Depa rtment during the pendenc y of the case . S ee In re J.O.A ., 283 S.W .3d at 346 (consider ing missed drug tests and other conduct afte r children remove d in endang erme nt deter

mination under subsecti o n (E )); In re C.A.B. , 289 S.W .3d 874, 885 (Tex. Ap p . — Ho u ston [14t h Dist.] 2009, no pet.) (“A fac tfinder rea sonably could infer that [parent’ s ] failure to submit to the court-or dere d drug scre ening indicate d s h e wa s avoiding testing beca use
s h e was using drug s.”); In re W .E.C. , 110 S.W .3d 231, 239 (Tex. App.—For t Worth 2 0 0 3 , n o pet.) (sa me). Viewing the evidenc e in the light most favor able to the endang erme nt finding under

s u b s ec t i o n (E), we conclude that the jury could have formed a firm belief or conviction that R

. Z. “eng ag ed in conduct

. . . which endang er[ed] the phy sical or emotional well-be ing of the child.” See Tex. F am. Code § 160.001(1)( E); In re J.F.C. , 96 S.W .3d at 266. Fur ther, ba sed on our r eview of the rec ord, we conclude that the evidenc e is such that the jury rea sonably could have formed a firm belief or conviction about the truth of the State’s enda ng erme nt alleg ations ag ainst R.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 court’s finding under section 161.00 1 (1 )(E) based on the jury verdic t, overr ule

13R.Z.’ s third point of error, an d d ec l i n e to addre ss her second and fourth point s of error. See In re

A.V. , 113 S.W .3d at 362.

Best Intere

st Finding I n her fifth point of err or, R.Z. challeng es the leg al and fac t u al sufficie ncy of the evidenc e to support the trial court’s finding based on the jury verdic t that termination of her pare ntal rig hts was in the best intere st of her c hild. See Tex. Fam. Code § 161.001(2)

.

Fa ctors that courts consider in assessing the best interest of a child include: (i) desires of the child, (ii) the stability of the home or propos ed place ment, (iii) pare ntal abilities, (iv) the emotional and phy sical needs of t h e chil d now and in the future, (v) the emotional and phy sical dang er to the child now an d i n t h e fu t u re , (vi) the plans for the child 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 , 544 S.W .2d at 372; see also Tex. Fam. Code § 263.307 (stating that “prompt and pe rmane nt placeme nt of the child in a safe environment is presumed to be in the child’s best interest” and listi ng fac to rs t h at co urt should consider “in d etermining whether the child’s pare nts are willing and able to provide the child wi t h a s af e 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 the child’s b est interest. In re C.H. , 89 S.W .3d at 28; Pruitt, 2010 Tex. App. L EXI S 10272, at *22–23.

R.Z. contends that the evidenc e showed that she was bonded and loved her child, that N.Z .’s needs wer e being met when he was living with her, and that she can pare nt N.Z

. and provide
14him a safe home. R.Z. focuse s on her plan to move to Pennsy lvania to live with her mother if N.Z

.

is returne d to her and evidenc e showing that N.Z

. was a happy , healthy child befor e the Depa rtment

remove d him f

rom her car e. Evidence supported finding s that R.Z. a nd the child loved eac h other and that R.Z . had made prog ress on he r par ental abilities. There also was e vidence that supported finding s that R.Z. was appropr iate with N.Z

. during supervised visits and that R.Z. with her family ’s help had be en able to take ca re of N.Z . prior to the re moval. Other evidenc e, howeve r, demonstrated that R.Z. was unable to take car e of her child

or to provide him with a stable home. See In re T.G.R.-M ., 404 S.W .3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“Stability is important in a child’s emotional and phy sical development.” ). Evidence supported finding s that R.Z. used illega l drug s during the pendency of the case and eng ag ed in criminal conduct, including committing assault, and that she did not have a stable living

arr ang ement or income. See id. (“Without stability , income, or a home, [a pare nt] is unable to provide for the child’s emotional and phy sical needs.” (quoting In re C.A.J. , 122 S.W .3d 888, 894 (Tex. App.—For

t Worth 2003, no pet.))). At the time of trial, R.Z. was li v in g w it h f a mi ly te mp o r a

r il y , lacke d transporta tion and income, and fac ed criminal char g es including assault and resisting arr est. She and her mother also had testified positive for drug s, and she missed dr ug tests r equeste d by the Depa rtment. As late as April 2014, evidenc e showed that R.Z. was arr ested afte r police wer e dispatched to a bank beca use her sister was try ing to pass a stolen chec k. R.Z. did not g ive her actua l name to the police and was
arr ested for failure to ide ntify

. As to he r plans for N .Z ., R.Z. te stified that, if N.Z . was re turned to her, she planned to live temporar ily in Texas and then to move back to Pennsy lvania to live with her

15mother. R.Z . testified, “My plan is to continue beinga mother of my son, like Iwas be fore he g ot taken a way .” As to this plan, the jury could have cre dited, among other e vidence , the evidence of the Marc h 2013 incident and R.Z.’ s conduct leading up to that incident to conc l u d e t h at this plan—re turning t h e ch i l d to his situation befor e the remova l—would not be safe or in the best interest of the child.

I f R.Z.’ s pare ntal rig hts wer e terminated, the Depa rt ment’s plan was for the foster pare nts to adopt him. The evidenc e showed that the child was safe and well t ak en ca re o f i n t he foster parent’ s home, t hat he had been in that place ment for a bout a y ear , that he had bonde d with his foster family , and that development delay s that he had when he enter ed foster car e had improved signific antly

. Both of the foster pare nts te stified that they loved N.Z

. and hoped to a dopt him, a nd evidenc e showed that they treated him appropr iately

. An occupational thera pist who observe d and worke d with N.Z . testified that initially he wa s “bang ing” his he ad and hitting others around him, that he was “dela

y ed overa ll in ty

pical child activities,” and that he was a d i fferent child sever al months later. We must assume that the jury resolved evidentiar y conflicts in favor of its verdic t if it was rea sonable to do so. See In re J.P.B. , 180 S.W .3d at 574 (noting that within province of jury t o j u d ge wi tness’s demea nor and to disbelieve testimony ). Given that R.Z.’ s testimony was inconsistent and conflicte d with evidenc e from other witnesses, we conclude that it was rea sonable for the jury to resolve the conflicts ag ainst R.Z. and in favor of the verdic t. For example, R.Z.’ s testimony that she came to Texas to visit conflicte d with evidenc e showing that she came to start a
new life, her testimony that she left N.Z

. in the boy fri en d ’s ca re on the day N.Z

. was remove d

16conflicte d with evidenc e that the boy friend was alre ady at work when she left the apar tment, and her testimony that s h e d id not use illega l drug s conflicte d with the positive test results on multipl e
occa sions. Viewing the evidenc e in the light most favor able to the best interest finding s, we conclude that the jury could have form ed a firm belief or conviction that terminating the pare ntal rig hts of R.Z. w as in the best interest of the child. See Tex. F am. Code § 160.001(2); 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 jury rea sonably could have formed a firm belief or conviction that termination of the pare ntal rig hts of R.Z. was in the best inte re s t o f t h e 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 best interest finding

. We overrule R.Z.’ s fifth point of err or. Appoin tm ent of Departm ent as Managing Conservator

I n her six th point of err or, R.Z. argues that the t ri al co urt err ed and abused its discretion by appointing the Depa rtment as sole manag ing c onservator of N.Z

. This point of err or is based on her

other point s of error challeng ing the termination of her pare ntal rig hts. Given that

we have conclude d that the evidenc e was leg ally and fac tually sufficie nt and that the trial court did not abuse its discretion by admitting the challeng ed exhibi t, we overr ule R.Z.’ s six th point of err or. See Tex. Fam. Code § 161.207 (re quiring court to appoint manag ing conser vator for child if pare ntal rig hts terminated and authorizing Depa rtment as one of choice s); In re D.N.C. , 252 S.W .3d 317, 319 (Tex. 2008) (per curiam) (noting t hat parent’s “challeng e to the conservatorship appointment was subsumed in her a

ppeal of the par ental-r ights ter

mination order” ). 17CONCLUSION Ha v i n g overr

uled R.Z.’ s dispositi ve points of err or, we aff irm the trial court’s judg ment.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Affir med Filed: Oc tober 29, 2014

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