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The=20 conflicting evidence clearly raised fact issues so that an = instructed=20 verdict terminating the mother=3Ds parental=20 rights, and naming the grandfather the sole permanent managing = conservator=20 would not have been justified. See In re M.N.V., 216 = S.W.3d=20 833, 835 (Tex. App.CSan=20 Antonio 2006, no pet.) (holding that testimony from terminated = parent that=20 she did not want her rights terminated, and evidence that she had = in part=20 completed her family service plan were sufficient to present = material=20 issues of fact as to the best interest determination, even in = light of=20 evidence of prior drug abuse); In re J.C., 108 S.W.3d 914, = 917=20 (Tex. App.CTexarkana=20 2003, no pet.) (holding that terminated parent=3Ds=20 testimony that termination would not be in best interest of the = child was=20 sufficient to defeat a motion for instructed verdict).

Accordingly,=20 we conclude that the trial court=3Ds refusal=20 to grant a jury trial amounted to harmful error. Therefore, = we=20 sustain issue five.

II. =20 Legal Sufficiency of the Evidence

In other=20 issues in her brief, the mother attacks the legal and = factual=20 sufficiency of the evidence to support the termination of her = parental=20 rights and the sole managing conservator appointment. It is = not=20 necessary to address the factual sufficiency challenge, which = would=20 require a remand if sustained, because our disposition of issue = five above=20 requires a remand. See Gemoets v. State, 116 S.W.3d 59, 65 = (Tex.=20 App.CHouston=20 [14th Dist.] 2001, no pet.) (stating that the appropriate remedy = for=20 reversal on a factual sufficiency issue is remand for a new = trial).=20 We address the legal sufficiency of the evidence=20 complaint.

A. =20 Standard of Review

In order=20 to terminate parental rights, the State must prove both that the = parent=20 has committed one of the enumerated acts worthy of termination, = and that=20 termination of parental rights is in the best interest of the = child. =20 See Tex. Fam. = Code=20 ' = 161.001. The burden of proof at trial is clear and = convincing=20 evidence. Id. Clear and convincing evidence = means the=20 measure or degree of proof that will produce in the mind of the = trier of=20 fact a firm belief or conviction as to the truth of the = allegations sought=20 to be established. Id. ' = 101.007.

When=20 reviewing the legal sufficiency of the evidence under this = standard, we=20 look at all the evidence in the light most favorable to the = finding to=20 determine whether a reasonable trier of fact could have formed a = firm=20 belief or conviction that its finding was true. In re = J.F.C.,=20 96 S.W.3d 256, 266 (Tex. 2002). The reviewing court assumes = that the=20 factfinder resolved disputed facts in favor of its finding if a = reasonable=20 factfinder could do so. Id. A court should = disregard=20 all evidence that a reasonable factfinder could have disbelieved = or found=20 to have been incredible. Id. If a court = determines that=20 no reasonable factfinder could form a firm belief or conviction = that the=20 matter that must be proven is true, then that court must conclude = the=20 evidence is legally insufficient. Id.

The Texas=20 Supreme Court has enumerated a list of factors that may be = considered by=20 courts in ascertaining the best interest of the child. = See Holley=20 v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Evidence that = proves=20 one or more statutory grounds for termination may also constitute = evidence=20 illustrating that termination is in the child=3Ds best=20 interest. See In re C.H., 89 S.W.3d 17, = 27B28 (Tex.=20 2002).

B. =20 Evidence Is Legally Sufficient to Show the Mother Committed an Act = that is=20 Ground for Termination

We note=20 that the mother no longer lives with M.A.=3Ds=20 father. However, there is evidence that while the mother was = in=20 Austin living with M.A.=3Ds father,=20 she knowingly allowed M.A. to remain in conditions or surroundings = that=20 endangered M.A.=3Ds physical=20 and emotional well-being. The evidence includes the = following: the=20 mother and M.A.=3Ds father=20 used crack/cocaine on a daily basis with M.A. in the house;=20 M.A.=3Ds father=20 was regularly verbally and physically abusive toward the mother;=20 M.A.=3Ds father=20 threatened the mother that he would hurt or kill M.A., yet=20 M.A.=3Ds father=20 was M.A.=3Ds=20 caretaker while the mother was at work; M.A. had bruises and = scratches and=20 burn marks on her when she was placed with the grandfather, which = the=20 mother said must have been caused by M.A.=3Ds=20 father. We conclude the foregoing constitutes legally = sufficient=20 evidence to support the finding that the mother had knowingly = allowed M.A.=20 to remain in conditions or surroundings which endangered = M.A.=3Ds physical=20 or emotional well-being. See In re J.F.C., 96 S.W.3d = at=20 266.

C. =20 Evidence is Legally Sufficient to Support Finding that Termination = of=20 Parental Rights and Placement with the Grandfather is in Best = Interest of=20 Child

Although=20 there was conflicting evidence, viewing the evidence in the light = most=20 favorable to the court=3Ds findings=20 we note the following evidence: M.A. was underweight and = withdrawn=20 when she came into the grandfather=3Ds care;=20 the mother has a volatile temperament and appears to suffer from = bipolar=20 disorder and borderline personality disorder; the mother failed or = did not=20 take several drug tests under the safety plan; the mother lives = with the=20 grandmother (who is divorced from the grandfather), and the = grandmother=20 has tested positive for drugs during the pendency of this case; = the mother=20 has missed visitation with M.A. several times since the = grandfather has=20 been possessory conservator of M.A.; the Houston social worker = testified=20 that when she stopped by the grandfather=3Ds home to=20 check on M.A., the house was child-friendly and M.A. appeared to = be a=20 happy and outgoing child. We conclude there is legally = sufficient=20 evidence to support a finding that the termination of the=20 mother=3Ds parental=20 rights and placement with the grandfather was in the best interest = of M.A.=20 See In re J.F.C., 96 S.W.3d at 266.

Accordingly,=20 we overrule the mother=3Ds issues=20 attacking the legal sufficiency of the evidence.

Conclusion

Because=20 the trial court committed harmful error in denying the mother a = jury=20 trial, we reverse those portions of the judgment terminating the=20 mother=3Ds parental=20 rights and naming the grandfather the sole managing conservator, = and we=20 remand to the trial court for further proceedings consistent with = this=20 opinion. We affirm the remainder of the trial = court=3Ds=20 judgment.

/s/ =20 Margaret Garner Mirabal

Senior=20 Justice

Judgment rendered = and=20 Memorandum Opinion filed October 4, 2007.

Panel=20 consists of Justices Anderson and Frost and Senior Justice=20 Mirabal.*

*Senior=20 Justice Margaret G. Mirabal sitting by = assignment.

^{^[1]} The father is not a party to this = appeal.

^{^[2]} Counsel for TDPRS did state that = if the=20 trial would be continued, then he would ask for certain measures = to be=20 taken. However, he did not object to a jury trial taking = place on=20 the current trial date, November 17.

^{^[3]} The grandfather argues that = because he did=20 not receive notice of the jury request at least thirty days = before=20 trial, the jury request should not get the benefit of having been=20 filed more than thirty days before trial. This = argument is=20 contrary to Rule 216, Texas Rules of Civil Procedure, and the case = law.

^{^[4]} However, no party had asked for a = continuance of the trial on the termination of parental rights=20 issues.

^{^[5]} We note that the grandfather = relies on=20 Crittenden v. Crittenden, 52 S.W.3d 768, 770 (Tex. = App.CSan Antonio 2001, pet. denied). = However,=20 unlike the record in Crittenden, there is an absence of = proof in=20 the present = case.