      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00412-CV



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

                                                   v.

                Texas Department of Family and Protective Services, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
         NO. D-1-FM-13-001602, HONORABLE TIM SULAK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               R.Z. appeals the trial court’s judgment terminating her parental rights to her child,

N.Z., following a jury trial.1 See Tex. Fam. Code § 161.001. In six points of error, she challenges

the admission of an exhibit, the sufficiency of the evidence to support the trial court’s findings based

on the jury verdict, and the appointment of appellee Texas Department of Family and Protective

Services as the sole managing conservator of her child. For the reasons that follow, we affirm.


                                          BACKGROUND

               R.Z.’s child N.Z. was born on June 3, 2011, in Pennsylvania. R.Z. and her child left

Pennsylvania when N.Z. was about four months old and went to Florida for approximately 6 months,




       1
        We use initials to refer to appellant and her child. See Tex. Fam. Code § 109.002(d); Tex.
R. App. P. 9.8. The trial court also terminated the parental rights of J.R., N.Z.’s father, in the
judgment, but J.R. did not appear for the trial and has not appealed.
prior to coming to Texas. After coming to Texas, they lived with family, including R.Z.’s father and

her sister.

               The Department became involved with R.Z. and N.Z. in 2012. Among other

incidents, the Department received a referral of domestic violence in November 2012. R.Z. had been

arrested for assault family violence. The Department also received referrals in December 2012 and

January 2013, and the referrals included allegations of criminal activity, illegal drug use, and abuse

of N.Z. R.Z. was arrested at the beginning of February 2013 for resisting arrest and for a warrant

stemming from assault family violence charges and spent a few days in jail. While she was in jail,

a Department caseworker met with R.Z. Around this time, R.Z. authorized her mother to be in

charge of N.Z.’s care. R.Z., however, resumed care of N.Z. at some point prior to March 21, 2013.

               On March 21, 2013, R.Z. and N.Z. were staying in an apartment with R.Z.’s sister and

her sister’s boyfriend. In response to a 911 call of a small child “wandering around by himself,” a

police officer went to the apartment complex and found N.Z. by himself in the parking lot near a

busy intersection. According to the officer, N.Z. “was 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 after

finding the child, the officer was able to locate the apartment in which the child was staying and to

speak with R.Z. According to R.Z., she and her sister left N.Z. in her sister’s boyfriend’s care to run

errands and N.Z. was asleep when they left.

               A caseworker for the Department also was called to the apartment at that time. The

caseworker asked R.Z. to do a drug test based on the way R.Z. was acting, believing “that she could

possibly be on something.” The caseworker reported that R.Z. was “constant[ly] moving up and



                                                  2
down, shaking, . . . just yelling and screaming for no reason.” The caseworker tried to get R.Z. to

do an oral drug test, but she chewed through the first swab and then claimed that she had “cotton

mouth” as to the second swab so she did not provide a valid sample to test.

               As a result of the March 2013 incident, the Department removed N.Z. from R.Z.’s

care and placed N.Z. in foster care. The Department filed a petition for termination of parental

rights, and the Department was named the temporary managing conservator of N.Z. R.Z. was

ordered to submit to random drug testing and participate in a psychosocial evaluation, individual

therapy, and basic parenting classes. During the pendency of the case, R.Z. tested positive for

amphetamine, methamphetamine, and cocaine, missed drug tests requested by the Department, and

was arrested and faced pending criminal charges. R.Z. was involved in physical altercations with

her father in August 2013 and her boyfriend in November 2013, both resulting in police

involvement. R.Z. was arrested for assault family violence and interference with an emergency call

for the incident in November 2013, but her father did not press charges as to the August 2013

incident. As to visits with N.Z. and court-ordered services during the pendency of the case, R.Z.

attended supervised visits with N.Z. and participated in some of the services, but she also missed

visits and failed to complete the court-ordered services by the time of trial.

               The trial occurred in June 2014 because the dismissal date for the case was extended.

At trial, the witnesses included R.Z., police officers who responded to incidents involving R.Z., a

laboratory director who worked for the drug testing facility that tested specimens provided by R.Z.

and her mother, the CASA supervisor assigned to this case, Department employees, an occupational

therapist who worked with N.Z., a therapist who worked with R.Z., and the foster parents. R.Z.



                                                  3
testified about the various allegations and incidents involving the police and the Department during

the time leading up to the Department’s removal of N.Z. through trial and to her plans going forward.

Her plan was to stay with family in Texas temporarily and then to move to Pennsylvania to live with

her mother. It was undisputed that R.Z. loved N.Z., that she had maintained a relationship with him,

and that she had participated in services, but that she had not completed the services. She explained

that she lacked transportation. She also denied using illegal drugs and explained the positive drug

tests as either a mistake by the laboratory or because of diet pills or allergy medicine that she

had taken.

               The police officers testified about incidents involving R.Z., including the March 2013

incident, the alleged assaults by R.Z. that occurred in August and November 2013, as well as a

criminal trespass warning at a hotel in January 2013, alleged misdemeanor theft in August 2013 for

“pawn[ing]” her father’s sunglasses, and failure to identify in April 2014. The officer who testified

about the August 2013 incident involving assault was dispatched to investigate a physical altercation

between R.Z. and her father. The officer testified that the allegation was that R.Z. committed

aggravated assault with injury to her father and that she “had threatened to kill him” but that no

charges were pending because her father decided not to press charges. The officer who testified

about the altercation between R.Z. and her boyfriend in November 2013 testified that R.Z. was

arrested for assault family violence and interference with an emergency call. The officer testified

that the boyfriend had a visible bite mark.

               Department employees testified about their involvement and observations of R.Z. and

N.Z., R.Z.’s progress toward completing services, and N.Z.’s care and placements in foster care.



                                                  4
N.Z. had been living with his current foster parents for about a year at the time of trial. The foster

parents testified that they wanted to adopt him and that N.Z. was doing well in their home. The

CASA supervisor testified about her observations of N.Z. in his current placement, and she

recommended that R.Z.’s parental rights be terminated, explaining her reasons for the

recommendation. In her opinion, N.Z. was a “very happy child” with his foster family and seemed

“to have a very close bond with everyone” in his current placement and she expressed concern about

R.Z.’s denial of drug abuse and lack of treatment and the safety of the environment if N.Z. was

returned to his mother.

                The exhibits included the results of the drug testing during the pendency of the case

on R.Z. and her mother, reports to the court from CASA and the Department, records from a crisis

center and from counseling and psychological services, and copies of the misdemeanor complaint

against R.Z. concerning the alleged theft in August 2013, a capias for her arrest dated May 16, 2014,

and a warrant recall dated June 11, 2014. Laboratory reports show that R.Z. tested positive for drugs

in April 2013, December 2013, and February 2014, and her mother tested positive in December

2013. The intake records from the crisis center, dated January 27, 2013, show that R.Z. reported that

her father physically and verbally abused her and that he abused alcohol daily.

                The jury found that R.Z.’s parental rights 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

parental rights was in the child’s best interest. See id. § 161.001(1)(D), (E), (O), (2). The trial court

rendered judgment on the jury’s verdict. R.Z. filed a motion for new trial, which was denied. This

appeal followed.



                                                   5
                                            ANALYSIS

Admission of Exhibit

               In her first point of error, R.Z. contends that the trial court erred in overruling her

objection to the admittance of one of the Department’s exhibits. The challenged exhibit was a

printout of pages from a website called “Naughty Reviews.” The pages have pictures of R.Z. but

identify her as “Natalia” and as a “Female Escort in Austin Texas.” The contact information

includes a phone number with an area code from the Pennsylvania area, an email address, and cost

of services. R.Z. contends that the exhibit was not properly authenticated, see Tex. R. Evid. 901(a),

and that the prejudice caused by the exhibit outweighed its probative value. See Tex. R. Evid. 403.

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. See In

re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion when it acts without

regard to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241–42 (Tex. 1985).

               “The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient 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. LEXIS 345, at *7–8 (Tex. App.—Eastland Jan. 13, 2011, no

pet.) (mem. op.) (“Testimony that a photograph is what it purports to be is sufficient to authenticate

the photograph, while the accuracy of that testimony is a question for the factfinder.”); see also

Tex. R. Evid. 401 (defining relevant evidence), 402 (explaining that relevant evidence

generally admissible).



                                                  6
               To support her position that the exhibit was not properly authenticated, R.Z. focuses

on information on the website that was not accurate, such as her height. At trial, she testified that

she was not aware of the website before the trial, that she had nothing to do with it, that she has

never used the phone number that was listed, and that someone must have created the profile on the

website to humiliate her. R.Z., however, did not dispute that the pages were posted on the website,

that the photographs on the website were of her, or that the email address on the website was her

e-mail. A Department caseworker also testified that the phone number on the website matched the

contact number that the Department was provided for R.Z. for several months, and R.Z. admitted

to using the name “Natalia” on a Facebook account that she created. Printouts from that Facebook

account were admitted as an exhibit without objection. Given this evidence, the trial court could

have concluded that there was sufficient evidence to support a finding that the pages from the

website were what the Department purported them to be and, therefore, the trial court did not abuse

its discretion by overruling R.Z.’s objection to the evidence based on lack of authentication. See

Tex. R. Evid. 901(a).

               R.Z. also contends that the trial court abused its discretion because the trial court

should have excluded the exhibit under Rule 403. See Tex. R. Evid. 403. Rule 403 provides that

relevant evidence “may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice.” Id. (emphasis added). “Because the best interest of the child must be the

court’s primary consideration in a suit affecting the parent-child relationship, rule 403 is an

extraordinary remedy that must be used sparingly.” In re J.W., 113 S.W.3d 605, 612 (Tex.




                                                 7
App.—Dallas 2003, pet. denied); see Trevino v. Texas Dep’t of Protective and Regulatory Servs.,

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

                To support her position that the exhibit should have been excluded under Rule 403,

R.Z. contends that the Department improperly characterized the website at trial as “an offer for

prostitution” and “an escort service” and focuses on the nature of the photos, showing her “in

scantily clad clothes.” The evidence from the website, however, was relevant to the determination

of whether allowing R.Z. to retain her parental rights would be in her child’s best interest. See

Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (including, among other factors to be considered,

emotional and physical danger to the child now and in the future, plans for the child by the individual

or agency seeking custody, and acts or omissions by parent showing that parent-child relationship

not proper). Guided by the principle that Rule 403 is an extraordinary remedy in the context of

evidence relevant to a best interest finding, we conclude that the trial court was within its discretion

when it overruled R.Z.’s objection to the evidence and overrule R.Z.’s first point of error. See In re

J.W., 113 S.W.3d at 612.


Sufficiency of the Evidence Challenges

                In her second through fifth points of error, R.Z. challenges the legal and factual

sufficiency of the evidence to support the trial court’s findings based on the jury’s verdict.


        Burden of Proof and Standard of Review

                To terminate parental rights, the Department has the burden to prove one of the

predicate grounds in section 161.001(1) of the Family Code and that termination is in the best



                                                   8
interest 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 clear and convincing standard. Tex. Fam. Code

§ 161.206(a); see In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (due process requires clear and

convincing standard of proof in parental termination cases). The clear and convincing standard is

“‘that measure or degree of proof which 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.’” 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 (defining “clear and convincing evidence”).

               Legal sufficiency review of the evidence to support a termination finding requires a

court to “look at all the evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In

re J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of the evidence to support a

termination finding, an appellate court reviews the record to determine “whether the evidence is such

that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s

allegations.” 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)

(describing factual sufficiency review in context of termination finding and noting that appellate

court “must give due deference to a jury’s factfindings” and “not supplant the jury’s judgment with

its own judgment”).


       Statutory Predicate Grounds

               In her second through fourth points of error, R.Z. challenges the legal and factual

sufficiency of the evidence to support the trial court’s findings based on the jury’s verdict as to the

                                                  9
statutory grounds submitted to the jury. Three statutory grounds were submitted to the jury. See

Tex. Fam. Code § 161.001(1) (D), (E), (O). Because termination of a parent’s rights can stand on

one statutory ground plus a best interest finding, we limit our review to the evidence to support

subsection (E)—that the parent “engaged in conduct or knowingly placed the child with persons who

engaged in conduct which endangered the physical or emotional well-being of their child.” See id.

§ 161.001(1)(E); In re A.V., 113 S.W.3d at 362 (explaining that only one predicate ground necessary

to support termination of parental rights when there is also best interest finding).2

                “‘Endanger’ means ‘to expose to loss or injury; to jeopardize.’” 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)). “Although ‘endanger’ means more than a threat of metaphysical injury or the

possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be

directed at the child or that the child actually suffers injury.” Id. The relevant inquiry under section

161.001(1)(E) is whether evidence exists that the endangerment of the child’s well-being was “the

direct result of Appellant’s conduct, including acts, omissions, or failures to act.“ In re M.E.-M.N.,

342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet. denied) (citation omitted). “Additionally,

termination under subsection (E) must be based on more than a single act or omission; the statute

requires a voluntary, deliberate, and conscious course of conduct by the parent.” Id.




        2
           R.Z. alternatively requests that, if this Court finds the evidence insufficient as to
subsections (D) or (E) but affirms on other grounds, this Court modify the judgment to reflect its
findings as to those subsections. We decline to do so. See In re A.V., 113 S.W.3d 355, 362 (Tex.
2003) (declining to reach other issues raised by parent).

                                                  10
                To support her position that the evidence was insufficient to support a finding under

subsection (E), R.Z. focuses on her testimony at trial that she left N.Z. in her sister’s boyfriend’s care

on March 21, 2013, the day that N.Z. was by himself in the parking lot. Other evidence, however,

supported a finding that she voluntarily left her young child unsupervised. There was evidence to

support a finding that the boyfriend was already at work when R.Z. and her sister left the apartment.3

Although R.Z. urges that a misunderstanding or mis-communication with her sister’s boyfriend does

not equate to endangering a child, the jury could have resolved the conflicting evidence to conclude

that R.Z. voluntarily left her child at the apartment unsupervised.

                R.Z. also urges that the relevant time period to determine whether there is evidence

of endangerment was the time period before the Department removed N.Z. But evidence of her

conduct both before and after the removal is relevant to the endangerment determination under

subsection (E). See Pruitt v. Texas Dep’t of Family & Protective Servs., No. 03-10-00089-CV,

2010 Tex. App. LEXIS 10272, at *13–14 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.)

(noting that relevant evidence to endangerment determination “may include conduct before the

child’s birth and both before and after the child has been removed by the Department”); see also

Robinson v. Texas Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686-87 (Tex.

App.—Houston [1st Dist.] 2002, no pet.) (parent’s illegal drug activity after agreeing not to commit

such acts in plan for reunification “established clear and convincing proof of the parent’s voluntary,

deliberate, and conscious conduct that endangered the well-being of her children”).


        3
          According to the Department’s report to the court, the boyfriend did not recall being asked
to watch N.Z. on that day, he had never watched N.Z. in the past, and R.Z. and N.Z. had been at his
place for one day.

                                                   11
                Here, the jury could have credited the evidence of illegal drug use, domestic violence,

and criminal activity by R.Z. both before and after N.Z. was removed to find that R.Z. engaged in

a conscious course of conduct that endangered her child. See In re J.O.A., 283 S.W.3d 336, 345

(Tex. 2009) (“[A] parent’s use of narcotics and its effect on his or her ability to parent may qualify

as an endangering course of conduct.”); In re M.E.-M.N., 342 S.W.3d at 263 (“A parent’s decision

to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of

losing a child, supports a finding that the parent engaged in conduct that endangered the child’s

physical or emotional well-being.”); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th

Dist.] 2003, no pet.) (“Domestic violence, want of self-control, and propensity for violence may be

considered as evidence of endangerment.”); In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo

2001, no pet.) (“[I]ntentional criminal activity which exposed the parent to incarceration is relevant

evidence tending to establish a course of conduct endangering the emotional and physical well being

of the child.” (citation omitted)).

                R.Z. denied or did not remember altercations that she had with family members,

denied using illegal drugs after N.Z. was born, provided excuses, including lack of transportation,

for missing visits, court-ordered services, and requested drug screening, and presented evidence to

support findings that the drug testing facility made a mistake or that she tested positive because of

diet pills and allergy medicine. She presented evidence of a negative drug test that had overlapping

time periods with a positive drug test. The jury, however, could have credited the evidence of

positive drug tests that did not overlap with the negative test and the evidence that R.Z. engaged in

other criminal activity, including assault on multiple occasions. The exhibits included the results



                                                  12
of drug tests showing that R.Z. tested positive for drugs in April 2013, December 2013, and February

2014. Although some drug tests were negative, the laboratory director for the testing facility

provided an explanation for why the drug tests with overlapping time periods could have different

results and confirmed that other drug tests showed that R.Z. had ingested methamphetamine during

the pendency of this case.

                R.Z. also had pending criminal charges against her at the time of trial, and she missed

drug tests requested by the Department during the pendency of the case. See In re J.O.A.,

283 S.W.3d at 346 (considering missed drug tests and other conduct after children removed in

endangerment determination under subsection (E)); In re C.A.B., 289 S.W.3d 874, 885 (Tex.

App.—Houston [14th Dist.] 2009, no pet.) (“A factfinder reasonably could infer that [parent’s]

failure to submit to the court-ordered drug screening indicated she was avoiding testing because

she was using drugs.”); In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no

pet.) (same).

                Viewing the evidence in the light most favorable to the endangerment finding under

subsection (E), we conclude that the jury could have formed a firm belief or conviction that R.Z.

“engaged in conduct . . . which endanger[ed] the physical or emotional well-being of the child.” See

Tex. Fam. Code § 160.001(1)(E); In re J.F.C., 96 S.W.3d at 266. Further, based on our review of

the record, we conclude that the evidence is such that the jury reasonably could have formed a firm

belief or conviction about the truth of the State’s endangerment allegations against R.Z. See In re

C.H., 89 S.W.3d at 25. Thus, we conclude that the evidence was legally and factually sufficient to

support the trial court’s finding under section 161.001(1)(E) based on the jury verdict, overrule



                                                  13
R.Z.’s third point of error, and decline to address her second and fourth points of error. See In re

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


        Best Interest Finding

                In her fifth point of error, R.Z. challenges the legal and factual sufficiency of the

evidence to support the trial court’s finding based on the jury verdict that termination of her parental

rights was in the best interest of her child. See Tex. Fam. Code § 161.001(2).

                Factors that courts consider in assessing the best interest of a child include: (i) desires

of the child, (ii) the stability of the home or proposed placement, (iii) parental abilities, (iv) the

emotional and physical needs of the child now and in the future, (v) the emotional and physical

danger to the child now and in the future, (vi) the plans for the child by the individual or agency

seeking custody, (vii) the programs available to assist these individuals to promote the best interest

of the child, (viii) acts or omissions by the parent showing that the parent-child relationship was not

proper, and (ix) any excuses for the parent’s conduct. Holley, 544 S.W.2d at 372; see also Tex. Fam.

Code § 263.307 (stating that “prompt and permanent placement of the child in a safe environment

is presumed to be in the child’s best interest” and listing factors that court should consider “in

determining whether the child’s parents are willing and able to provide the child with a safe

environment”). No one factor is controlling, and evidence presented to satisfy the predicate ground

finding may also be probative of the child’s best interest. In re C.H., 89 S.W.3d at 28; Pruitt,

2010 Tex. App. LEXIS 10272, at *22–23.

                R.Z. contends that the evidence showed that she was bonded and loved her child, that

N.Z.’s needs were being met when he was living with her, and that she can parent N.Z. and provide

                                                   14
him a safe home. R.Z. focuses on her plan to move to Pennsylvania to live with her mother if N.Z.

is returned to her and evidence showing that N.Z. was a happy, healthy child before the Department

removed him from her care. Evidence supported findings that R.Z. and the child loved each other

and that R.Z. had made progress on her parental abilities. There also was evidence that supported

findings that R.Z. was appropriate with N.Z. during supervised visits and that R.Z. with her family’s

help had been able to take care of N.Z. prior to the removal.

                Other evidence, however, demonstrated that R.Z. was unable to take care 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 physical development.”).

Evidence supported findings that R.Z. used illegal drugs during the pendency of the case and

engaged in criminal conduct, including committing assault, and that she did not have a stable living

arrangement or income. See id. (“Without stability, income, or a home, [a parent] is unable to

provide for the child’s emotional and physical needs.” (quoting In re C.A.J., 122 S.W.3d 888, 894

(Tex. App.—Fort Worth 2003, no pet.))).

                At the time of trial, R.Z. was living with family temporarily, lacked transportation and

income, and faced criminal charges including assault and resisting arrest. She and her mother also

had testified positive for drugs, and she missed drug tests requested by the Department. As late as

April 2014, evidence showed that R.Z. was arrested after police were dispatched to a bank because

her sister was trying to pass a stolen check. R.Z. did not give her actual name to the police and was

arrested for failure to identify. As to her plans for N.Z., R.Z. testified that, if N.Z. was returned to

her, she planned to live temporarily in Texas and then to move back to Pennsylvania to live with her



                                                  15
mother. R.Z. testified, “My plan is to continue being a mother of my son, like I was before he got

taken away.” As to this plan, the jury could have credited, among other evidence, the evidence of

the March 2013 incident and R.Z.’s conduct leading up to that incident to conclude that this

plan—returning the child to his situation before the removal—would not be safe or in the best

interest of the child.

                If R.Z.’s parental rights were terminated, the Department’s plan was for the foster

parents to adopt him. The evidence showed that the child was safe and well taken care of in the

foster parent’s home, that he had been in that placement for about a year, that he had bonded with

his foster family, and that development delays that he had when he entered foster care had improved

significantly. Both of the foster parents testified that they loved N.Z. and hoped to adopt him, and

evidence showed that they treated him appropriately. An occupational therapist who observed and

worked with N.Z. testified that initially he was “banging” his head and hitting others around him,

that he was “delayed overall in typical child activities,” and that he was a different child several

months later.

                We must assume that the jury resolved evidentiary conflicts in favor of its verdict if

it was reasonable to do so. See In re J.P.B., 180 S.W.3d at 574 (noting that within province of jury

to judge witness’s demeanor and to disbelieve testimony). Given that R.Z.’s testimony was

inconsistent and conflicted with evidence from other witnesses, we conclude that it was reasonable

for the jury to resolve the conflicts against R.Z. and in favor of the verdict. For example, R.Z.’s

testimony that she came to Texas to visit conflicted with evidence showing that she came to start a

new life, her testimony that she left N.Z. in the boyfriend’s care on the day N.Z. was removed



                                                 16
conflicted with evidence that the boyfriend was already at work when she left the apartment, and her

testimony that she did not use illegal drugs conflicted with the positive test results on multiple

occasions.

               Viewing the evidence in the light most favorable to the best interest findings, we

conclude that the jury could have formed a firm belief or conviction that terminating the parental

rights of R.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. Further, based on our review of the record, we conclude that the evidence is such

that the jury reasonably could have formed a firm belief or conviction that termination of the parental

rights of R.Z. was in the best interest of the child. See In re C.H., 89 S.W.3d at 25. Thus, we

conclude that the evidence was legally and factually sufficient to support the best interest finding.

We overrule R.Z.’s fifth point of error.


Appointment of Department as Managing Conservator

               In her sixth point of error, R.Z. argues that the trial court erred and abused its

discretion by appointing the Department as sole managing conservator of N.Z. This point of error

is based on her other points of error challenging the termination of her parental rights. Given that

we have concluded that the evidence was legally and factually sufficient and that the trial court did

not abuse its discretion by admitting the challenged exhibit, we overrule R.Z.’s sixth point of error.

See Tex. Fam. Code § 161.207 (requiring court to appoint managing conservator for child if parental

rights terminated and authorizing Department as one of choices); In re D.N.C., 252 S.W.3d 317, 319

(Tex. 2008) (per curiam) (noting that parent’s “challenge to the conservatorship appointment was

subsumed in her appeal of the parental-rights termination order”).

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                                      CONCLUSION

              Having overruled R.Z.’s dispositive points of error, we affirm the trial

court’s judgment.



                                           __________________________________________

                                           Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: October 29, 2014




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