in the Interest of A. G. G., A. D. G., I. v. and v. v. Minor Children ( 2013 )

NUMBER 13-11-00299-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF A.G.G., A.D.G., I.V, AND V.V., MINOR CHILDREN
On appeal from the County Court at Law No. 5
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
This appeal involves the termination of A.V.’s (“Mother”) parental rights over
A.G.G., A.D.G., I.V., and V.V.1 By two issues, Mother asserts that (1) the trial court
abused its discretion in finding her appeal frivolous under former family code section
1
To protect the privacy of the parties, we will use aliases throughout this opinion. See TEX. R.
APP. P. 9.8.
263.405(d)(3); and (2) insufficient evidence supports the jury’s findings. We affirm.
I. BACKGROUND
The Texas Department of Family and Protective Services (“the Department”)
brought this involuntary parental termination action against Mother following its
investigation of alleged child abuse—specifically, starvation and malnourishment of I.V.
A. The Evidence at Trial
(1) I.V.’s Medical Condition and Testimony from Treating Doctors2
On February 27, 2009, I.V., age 3, arrived at Christus Spohn Hospital’s
emergency room in Corpus Christi unresponsive, not breathing, and with a weak pulse
rate of 30. Attending physician Amalia Tinoco, M.D., aided by the triage staff, worked to
resuscitate I.V. by intubating him and running intravenous fluids into his body. As part
of the resuscitation process, Dr. Tinoco ordered a “finger-stick” reading of I.V.’s blood to
determine his glucose level. The “finger-stick” reading was performed twice on I.V. and
revealed a glucose level of 3 each time. According to Dr. Tinoco, a glucose level of 3 is
incompatible with life and likely to result in death if not immediately restored to normal
levels. A “normal” glucose reading for humans is between 60 and 110. Dr. Tinoco
admitted that a glucose level of 3 was a rare reading in her practice. Dr. Tinoco
described I.V.’s physical appearance that day as “totally emaciated, just like a little
skeleton of skin and bone.” In more descriptive terms, Dr. Tinoco likened I.V.’s
2
Shortly after I.V.’s hospitalization at Christus Spohn, the Department was alerted to I.V.’s
condition. On March 2, 2009, the Department filed a petition for protection, conservatorship, and
termination of parental rights against Mother regarding I.V. Subsequently, the Department was appointed
temporary managing conservator of A.G.G., A.D.G., I.V., and V.V.
2
appearance to that of concentration camp prisoners from World War II. Dr. Tinoco
medically opined that I.V. had been starved.
Once I.V.’s condition was stablized, Dr. Tinoco interviewed Mother. Mother told
Dr. Tinoco that she had last fed I.V. a hamburger earlier that morning. Dr. Tinoco
stated that based on I.V.’s diagnostic condition and physical appearance, she found
Mother’s statements “medically impossible.”
After approximately two hours of emergency care, I.V. was transferred to the
Driscoll Children’s Hospital Child Abuse Resource and Evaluation (CARE) team under
the direct supervision of Nancy Harper, M.D., a double board-certified pediatrician and
child-abuse pediatrician.
Dr. Harper spoke directly to I.V. during her initial consultation, in which he told her
that he had not eaten anything in the last forty-eight hours. I.V. stated that he could
neither walk nor run but wanted to eat a cheeseburger. Dr. Harper also interviewed
Mother about what I.V. had eaten the previous day. Mother stated that she fed I.V.
three meals the day prior, including an afternoon snack. Dr. Harper took several
photographs of I.V. in his hospital bed to document his condition. These photos were
admitted into evidence at trial and depicted a withered child whose ribcage was
prominent and whose skin was sagging from his buttocks. Dr. Harper testified that the
photos were “descriptive of how wasted [I.V.] was and was consistent with severe
malnutrition.” Dr. Harper further indicated that I.V.’s appearance and condition was not
consistent with his having eaten anything in the last forty-eight hours.
Dr. Harper and the Driscoll CARE team retrieved I.V.’s medical records from
previous health care providers and used these records to compile a “growth curve” that
3
spanned I.V.’s life. According to Dr. Harper, as a young baby, I.V. was “quite chubby,”
and weighed in the 95th percentile for his age. Most of his life, I.V.’s documented
weights were in the 95th percentile and showed good growth until just after he turned
age two. At that point, I.V.’s weight gain slowed, and he stopped growing in height.
Dr. Harper testified that these factors are indicative of a child who is failing to thrive, also
called “chronic malnutrition” or “stunting,” which causes the child to stop growing. Due
to his malnutrition, Dr. Harper testified that I.V.’s “metabolic machinery” was at a point
where it was no longer functioning properly.
During I.V.’s near-month-long stay at Driscoll, more than sixty different genetic,
metabolic, and medical tests were performed on him by multiple subspecialists in the
fields of gastroenterology, hematology, nutrition, and physical and occupational therapy
to determine the cause of his starvation. After the battery of tests, Dr. Harper
concluded that chronic malnutrition brought on I.V.’s condition.
According to Dr. Harper, I.V. developed other medical conditions and
complications as a result of his chronic malnutrition. One process, called “catabolism,”
occurred where I.V.’s body was breaking down fat in his body to provide fuel for energy.
Under this condition, once the body runs out of fat-fuel sources, it begins to break down
protein in the muscle and fats from other organs such as the brain and liver. Medical
imaging showed brain atrophy, or shrinkage, in I.V.’s skull caused by starvation.
According to Dr. Harper, I.V.’s body was “consuming his organs,” including his brain, for
energy. Dr. Harper stated that lowered cognitive skills and hyperactivity disorder were
the potential consequences of brain atrophy. The CARE team also worked to avoid
“refeeding syndrome” caused by a sudden surge in insulin from feeding a starved
4
person. This syndrome causes cells to retain electrolytes and deprive the blood from
receiving them. Therefore, the CARE team fed I.V. at a slow pace so that he would
gain weight at a slower rate to avoid further complications. However, I.V.’s bone
marrow had already gone into shock as a result of the refeeding syndrome, which led to
his anemia and required several blood transfusions to treat.
Dr. Harper noted that I.V. progressed positively during his hospitalization, but still
struggled with walking up stairs unassisted. Dr. Harper was later informed in follow-up
visits that I.V. overcame these mobility obstacles with time. From his hospitalization in
late February/early March 20093 to his follow up visit in December 2009, I.V. had gained
“almost 26 pounds” and had grown four inches in height. Dr. Harper described I.V.
during his last visit as “playful” and “active,” and said that he could run, despite having
“slightly small calves.” Overall, Dr. Harper testified that he did “great.”
Dr. Harper opined from a medical perspective that I.V. was tortured. She also
expressed concern about his safety if placed back in the care of Mother and others who
cared for him prior to his hospitalization. Dr. Harper stated during questioning that I.V.’s
treatment was “one of the most egregious, severe cases” that she has seen in her
career.
3
I.V. was discharged from Driscoll hospital on March 24, 2009.
5
(2) Mother’s & M.Z.’s Testimony4
Mother testified that she was concerned in late 2007 that I.V. “ate too much” but
denied that she was concerned that he was “too chunky” or “too heavy.” Medical
records from late 2007 admitted into evidence from M&M Pediatrics—during Mother’s
temporary residence in Brownsville—indicated that Mother was concerned about I.V.’s
constant hunger and weight gain. Mother noticed, however, that I.V. was losing weight
from February 2008 (when baby V.V. was born) until December 2008—two months prior
to his ultimate hospitalization—when she took him to Driscoll Children’s Hospital for an
evaluation. Mother recalled that during the visit at Driscoll, the attending physician
remarked that I.V. looked like he was starving. I.V. was treated and eventually
discharged with “non-organic failure to thrive.” Mother was instructed in I.V.’s discharge
paperwork to follow-up with his primary care physician in two to three days.
During all relevant times in this case, Mother was romantically involved with V.Z.
Mother lived with V.Z. along with Mother’s children and V.Z.’s mother, M.Z. M.Z.
testified that she advised Mother several times to take I.V. for follow-up visits following
his December 2008 discharge. M.Z. testified that leading up to I.V.’s second
hospitalization, she noticed that he was thin, but he was still walking, talking, and eating.
M.Z. remembered that on the morning of February 27, 2009, she was caring for the other
4
At the time of the parental termination proceedings, Mother was in the custody of the Texas
Department of Criminal Justice’s Insitutional Division. On July 14, 2010, she was found guilty in Nueces
County for injury to a child, a first-degree felony, and was sentenced to thirty years’ imprisonment. See
TEX. PENAL CODE ANN. § 22.04 (West Supp. 2011). Mother appealed her conviction, which was affirmed
by this Court on April 5, 2012. See Villarreal v. State, No. 13-10-00396, 2012 WL 1142885 (Tex.
App.—Corpus Christi April 5, 2012, no pet.) (mem. op., not designated for publication).
6
children in her bedroom when Mother barged in, frantically holding I.V., “crying
[hysterically],” and asking for help because something was wrong with him. M.Z. called
911. Shortly thereafter, V.Z.’s brother and his girlfriend arrived at the home. In light of
the situation and I.V.’s appearance, V.Z.’s brother rushed I.V. to the hospital in his own
vehicle because he was concerned about the time it would take for the ambulance to
arrive.
(3) Professor Wayne Donald Duehn’s Testimony
The Department elicited testimony from Wayne Donald Duehn, Ph.D., professor
emeritus at The University of Texas at Austin’s School of Social Work. Professor
Duehn testified that, based on his review5 of this case, I.V. was “most definitely” a victim
of “severe childhood torture.” According to Professor Duehn, “child torture” is a term
used to distinguish “unusual and cruel punishment abuse of children.” The acts must
be premeditated, intentional, and continuous. Based on his review of I.V.’s
psychological evaluation and report, Professor Duehn concluded that I.V. was hurt and
“terrorized.” During cross-examination, Professor Duehn admitted that his
assessments and conclusions were based on his review of others’ reports and not from
one-on-one contact with the individuals involved in the underlying case.
Another theory advanced by Professor Duehn was that of “family scapegoating.”
According to the professor, “family scapegoating” relates to family dynamics in which
5
In preparation for his psychological and social evaluation report and testimony, Professor Duehn
reviewed the following materials: (1) affidavits of removal of A.G.G., A.D.G., I.V., and V.V.; (2) Dr. Harper’s
medical report of “severe starvation and neglect of I.V.”; (3) psychological evaluations of Mother and V.Z.;
(4) transcripts of previous court proceedings; (5) treatment and progress notes of A.G.G., A.D.G., I.V., and
V.V. by two licensed therapists; (6) lecture notes of Nancy Kellogg in a conference on the Prosecution of
Child Abuse Cases on Starvation; and (7) scholarly articles on empathetic deficits in siblings of “severely
scapegoated” children.
7
one member of the family is singled out to be the reason for all the problems, issues, and
dysfunctions existing within the family. Professor Duehn testified that the scapegoat is
seen as “being wicked, bad, demented, evil, different, [and] strange,” and that person
becomes “the focus and explanation for all the problems that may exist in the family.”
As a result, the victim is treated differently by their siblings because the siblings become
numb toward the victim as a result of their own vicarious trauma. According to
Professor Duehn’s psychological and sociological evaluation admitted into the record,
the siblings of a family’s scapegoat also experience issues with empathy skills by
becoming “emotionally numb” to relationships and emotional problems through their
lives.
Professor Duehn found evidence of family scapegoating in I.V.’s siblings, A.G.G.
and A.D.G., as they initially did not verbalize any concern regarding I.V.’s critical medical
condition during their respective psychological evaluations. According to his review of
the case, Professor Duehn identified I.V. as the family’s scapegoat because no other
children appeared to be starved. In situations of family scapegoating and child torture,
Professor Duehn testified that clinical research indicates that a torturer is “not amenable
to treatment.” Therefore, Professor Duehn recommended that it was in the children’s
best interest to terminate Mother’s parental rights to A.G.G., A.D.G, I.V., and V.V.
(4) Department Caseworker Stacey Jones’s Testimony
Stacey Jones was the Department’s caseworker assigned to this case. Jones
admitted that while family services were offered to Mother after the Department’s initial
involvement, reunification with her children was never the Department’s primary goal.
Further, Jones noted, that against the Department’s recommendations, the trial court
8
ordered that the Department find family placements for A.G.G., A.D.G., and V.V. after
they were removed from Mother’s care. Only one family (the “AZ family”) qualified for
Department placement after criminal background checks and prior Department histories
disqualified other family members. Placement with the AZ family, however, lasted for
only three months due to the family’s poor financial situation and potential relocation to
San Antonio. Jones noted that during A.G.G., A.D.G. and V.V.’s time with the AZ
family, Mother visited with the children several times in violation of the trial court’s
no-contact order.
For a short period of time before the girls moved to their current foster home, they
lived with foster mother N.G. According to Jones, N.G. asked the Department to
remove the girls from placement due to behavioral issues. However, Jones testified
that the girls were happy with their third and current foster home placement and sought
adoption from this family. Jones testified that A.G.G. and A.D.G. later admitted in
interviews that they initially lied to investigators when they told them that I.V. was not
starved. In fact, A.G.G. and A.D.G. admitted that I.V. was starved by V.Z. Jones
testified that A.G.G. and A.D.G. said that they lied about I.V.’s starvation because they
were afraid of Mother. Both admitted that they also continue to experience nightmares
about I.V.’s severe malnutrition.
Based on the children’s therapists’ and Professor Duehn’s recommendations, I.V.
was placed in a separate foster home because I.V. reacted in a terrified manner when he
saw A.G.G. at the hospital on one occasion.6 I.V. has continued his foster care in the
6
The Department noted, however, that it has always considered reuniting the siblings together,
9
same home he has been in since his discharge from Driscoll Hospital in March 2009.
I.V.’s foster mother, A.M., testified that I.V. initially struggled after his discharge from the
hospital. Specifically, A.M. noted that I.V. had difficulty falling asleep at night. A.M.
testified that she would console him by holding, rocking, and singing him back to sleep.
Eventually, I.V. progressed by gaining weight and playing at the park. According to
A.M., “he just blossomed.” Jones testified that A.M. expressed an interest in adopting
I.V., and Jones did not anticipate any problems with the potential adoption.
Jones stated that termination of Mother’s parental rights was in all of the children’s
best interests.
(5) CASA Kathy Thornberry’s Testimony
Court-appointed Special Advocate (“CASA”) Kathy Thornberry testified that she
had been involved with this case since its inception and had attended every court
proceeding, except one, leading up to the trial. Thornberry testified that both foster
families—which have both expressed interest in adopting the children—agreed to keep
the children in contact with one another in the future. Thornberry also recommended
that termination of Mother’s parental rights was in the children’s best interest.
B. Trial and Post-Trial Proceedings
A Nueces County jury reached a unanimous verdict to terminate Mother’s 7
parental rights over A.G.G., A.D.G., I.V., and V.V. after the five-day trial.8
with the guidance and input from the children’s therapists, court-appointed special advocates, and
court-appointed ad-litems.
7
Parental rights were also terminated as to A.G., the adjudicated father of A.G.G. and A.D.G., who
voluntarily relinquished his parental rights to A.G.G. and A.D.G. by a signed affidavit at the time of trial.
10
Following the trial court’s order of termination, Mother filed a motion for new trial,
see TEX. R. CIV. P. 329b(b), and a statement of points on appeal on grounds that the
termination evidence was legally and factually insufficient to support the jury’s
termination findings under Texas Family Code section 161.001(1)–(2). See Acts 2001,
77th Leg., ch. 1090, § 9, 2001 TEX. SESS. LAW. SERV. 1090 (West 2001), amended and
repealed by Act of May 19, 2011, 82d Leg., R.S., ch. 75 §§ 4, 5 2011 TEX. SESS. LAW
SERV. (West 2011).
The trial court held a post-trial hearing and held that Mother’s appeal lacked an
arguable basis in law or fact and denied Mother’s motion for new trial. This appeal
ensued.
II. FRIVOLOUSNESS FINDING
By her first issue, Mother asserts that the trial court abused its discretion in finding
her appeal frivolous.
A. Applicable Law and Standard of Review
Because the trial court’s order of termination was signed prior to September 1,
2011, we will apply the pre-2011 version of family code section 263.405—applicable
parts of which have since been amended or repealed by the Legislature. See Acts
2001, 77th Leg., ch. 1090, § 9, 2001 TEX. SESS. LAW. SERV. 1090 (West 2001), amended
Additionally, three individuals were the alleged potential father of I.V., and two of those three were also the
alleged potential father of V.V. All were represented by counsel at trial, and each of the alleged potential
father’s parental rights was terminated by the trial court. None of the potential fathers’ terminations are
before us on this appeal.
8
The jury found that Mother engaged in conduct under family code subsection 161.001(1)(D), (E),
(L), (O), and (Q) and that termination of Mother’s rights was in the children’s best interest. See TEX. FAM.
CODE ANN. § 161.001(1), (2) (West Supp. 2011).
11
and repealed by Act of May 19, 2011, 82d Leg., R.S., ch. 75 §§ 4, 5, 2011 TEX. SESS.
LAW SERV. (West 2011).
In a previous order from this Court, we abated the underlying appeal and ordered
the trial court reporter to prepare and file a complete reporter’s record, including all
evidence admitted at the termination proceeding without advance payment by Mother.
See In re K.D., 202 S.W.3d 860, 866 (Tex. App.—Fort Worth 2006, no pet.) (“an
appellate court has the authority to order the preparation of a free record of all of the
evidence in a termination case when necessary to review a trial court's determination
that an appeal raising a factual sufficiency complaint is frivolous”). Additionally, we
instructed both parties to re-brief this Court—first, on the issue of whether this appeal is
frivolous; and second, on the substantive merits of Mother’s appeal. Under the
pre-2011 construction of section 263.405(d), the scope of appellate review is limited to
the frivolousness finding. See In re J.L., No. 13-07-00345-CV, 2010 WL 746702, at *2
(Tex. App.—Corpus Christi March 4, 2010, no pet.) (mem. op.) (citing In re K.D., 202
S.W.3d at 865).
Once an affected parent files a statement of appellate points under the pre-2011
version of family code section 263.405(d), the trial court is required to conduct a hearing
to determine, among other things, whether the appeal is frivolous as provided by section
13.003(b) of the civil practices and remedies code. See Acts 2001, 77th Leg., ch. 1090,
§ 9, 2001 TEX. SESS. LAW . SERV. 1090 (amended and repealed 2011); TEX. CIV. PRAC. &
REM. CODE ANN. § 13.003(b) (West 2002). An appeal is frivolous if there are no
substantial questions for appellate review and when the appeal lacks “an arguable basis
whether in law or in fact.” See In re J.L., 2010 WL 746702, at *2.
12
A trial court may order termination of parental rights upon finding by clear and
convincing evidence that the parent has committed statutory violations enumerated in
section 161.001(1)(A)–(T) of the family code, see TEX. FAM. CODE ANN. § 161.001(1)
(West Supp. 2011); and that termination is in the best interest of the child, see id. §
161.001(2). The following non-exhaustive list is considered by courts in analyzing the
best interests of a child: (1) desires of the child: (2) emotional and physical needs of the
child now and in the future; (3) emotional and physical danger to the child now and in the
future; (4) parental abilities of individuals seeking custody; (5) programs available to
assist individuals to promote the best interest of the child; (6) plans for the child by these
individuals or by the agency seeking custody; (7) stability of the home or proposed
placement; (8) acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions
of the parent. See Holley v. Adams 544 S.W.2d 367, 372 (Tex. 1976); W.B. v. Tex.
Dep’t. of Protective and Regulatory Serv., 82 S.W.3d 739, 742 (Tex. App.—Corpus
Christi 2002, no pet.).
Due process requires the application of the clear and convincing evidence
standard of proof in parental termination cases. In re J.F.C., 96 S.W.3d 256, 263–64
(Tex. 2002); see TEX. FAM. CODE ANN. § 161.001 (West Supp. 2011). “Clear and
convincing evidence” means the measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established. In re J.F.C., 96 S.W.3d at 264; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
13
In a legal sufficiency review:
a court should 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. To give appropriate deference to the
factfinder's conclusions and the role of a court conducting a legal sufficiency
review, looking at the evidence in the light most favorable to the judgment means
that a reviewing court must assume that the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so. A corollary to this
requirement is that a court should disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible. This does not
mean that a court must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could skew the
analysis of whether there is clear and convincing evidence.
In re J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, the reviewing court must give due consideration to
evidence that the factfinder could reasonably have found to be clear and convincing. Id.
at 267. The inquiry must be one that asks whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the State’s allegations.
Id. Therefore, if, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a factfinder
could not reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient. Id.
When a trial court conducts a frivolousness hearing on factual and legal
sufficiency grounds, the trial court should apply the aforementioned standards of review.
In re K.D., 202 S.W.3d at 867–68. Accordingly, we review a trial court’s determination
that an appeal is frivolous for an abuse of discretion. In re J.L., 2010 WL 746702, at *2.
The test for an abuse of discretion is whether the trial court acted without reference to
any guiding rules or principles, or stated another way, whether its decision was arbitrary
14
or unreasonable. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750,
757 (Tex. 2003) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242
(Tex. 1985)).
B. Discussion
In her statement of points on appeal, Mother asserted that the evidence was
legally and factually insufficient to support the jury’s finding that she:
(1) knowingly placed or knowingly allowed her children to remain in conditions or
surroundings which endanger the physical or emotional well-being of the
children, see TEX. FAM. CODE ANN. § 161.001(1)(D);
(2) engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangers the physical or emotional well-being of
the children, see id. § 161.001(1)(E);
(3) failed to comply with the provisions of a court order that specifically
established the actions necessary for the mother to obtain the return of the
children who have been in the permanent or temporary managing
conservatorship of the Department for not less than nine months as a result of
the children’s removal from the parent under Chapter 262 for the abuse or
neglect of the children, see id. § 161.001(1)(O);
(4) has been convicted or has been placed on community supervision, including
deferred adjudication community supervision, for being criminally responsible
for the death or serious injury of a child under the following sections of the
Penal Code: penal code section 22.04 (injury to a child, elderly individual, or
disabled individual), see id. § 161.001(1)(L); and
15
(5) knowingly engaged in criminal conduct that has resulted in the mother’s
conviction for an offense and confinement or imprisonment and inability to
care for the children for not less than two years from the date of filing the
petition, see id. § 161.001(1)(Q); and
(6) that termination of the parent child relationship between [Mother] and [A.G.G.,
A.D.G., I.V., and V.V.] is in the children’s best interest, see id. § 161.001(2).
Mother argues in her brief that the trial court abused its discretion for summarily
finding that her appeal was frivolous without taking any new evidence at the post-trial
hearing concerning the frivolousness of her appeal. We disagree. The relevant
former statute required the trial court to hold a hearing within 30 days to determine
whether (1) a new trial should be granted, (2) [Mother’s] claim of indigency should be
sustained, and (3) the appeal is frivolous under section 13.003(b) of the civil practice and
remedies code. In this case, the trial court complied with each respective provision.
Our complete review of the record in this case shows that I.V. was near-death,
severely starved, and suffering from malnutrition under Mother’s care at the time he was
presented at the Christus Spohn emergency room. Photos admitted into evidence
corroborate the first-hand descriptions offered by Dr. Tinoco and Dr. Harper who treated
I.V. shortly after his arrival at the hospital. Drs. Tinoco and Harper described I.V.’s
physical appearance at the time of his hospitalization as “wasted” and likened his
appearance to victims of the Nazi concentration camps of World War II. Dr. Tinoco also
testified with reasonable medical certainty that I.V. was within moments of death, given
that I.V.’s glucose level was at 3, and a medically normal level is between 60 and 110.
Furthermore, any disputed testimony offered by Mother, or anyone else, that I.V. had
16
eaten within the last twenty-hours of his emergency room visit was refuted as “medically
impossible.” Dr. Harper, a double-board certified pediatrician and child abuse
pediatrician, testified that I.V.’s condition was “one of the most egregious, severe cases”
of child abuse she had witnessed in her career. After receiving medical care and being
removed from Mother’s care, I.V. slowly recovered, progressed, and has since
“blossomed.” Additionally, the evidence shows that I.V. was diagnosed with
non-organic failure to thrive two months prior to his near-death experience. At that
time, the treating doctor at Driscoll advised Mother to take I.V. to his primary care doctor
two-to-three days after his discharge, but Mother did not, despite repeated suggestions
from M.Z. to do so.
The evidence also indicates lasting emotional and psychological damage in the
other children, who witnessed I.V.’s starvation. However, presently, all the children are
in stable home environments awaiting adoptions. The evidence at trial further
established that Mother was convicted on July 14, 2010 in Nueces County of injury to a
child, a first-degree felony, and sentenced to thirty years’ imprisonment with the Texas
Department of Corrections, Institutional Division. See TEX. PENAL CODE ANN. § 22.04.
At trial, Mother was incarcerated, awaiting her appeal. Mother’s judgment of conviction
was admitted into evidence without objection. During testimony, several references
were made to Mother’s criminal trial by several witnesses. Mother also gave testimony
that she was convicted of injury to a child, and at the time of trial, she was incarcerated.
Considering the entire record, we cannot say that the trial court abused its
discretion by concluding that the evidence is such that a reasonable trier of fact could
have formed a firm belief or conviction that its finding that all allegations were true and
17
that Mother’s evidentiary sufficiency challenges were frivolous. See In re K.D., 202
S.W.3d at 868. Moreover, because we hold that the trial court did not abuse its
discretion in finding Mother’s appeal frivolous, we need not address her remaining issue
on appeal. See TEX. R. APP. P. 47.1.
III. CONCLUSION
The trial court’s order of termination is affirmed.
__________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the 3rd
day of January, 2013.
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