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                                 MEMORANDUM OPINION

                                         No. 04-09-00500-CV

                                   In the Interest of J.C.R., a Child

                       From the 81st Judicial District Court, Frio County, Texas
                                 Trial Court No. 08-07-00165-CVF
                              Honorable Paul Gallego, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: June 16, 2010

AFFIRMED

           This is an appeal from an order terminating Connie Ramirez’s parental rights to J.C.R.

Ramirez argues that the evidence is legally and factually insufficient to support the trial court’s

findings. We affirm.

                                            BACKGROUND

           The Department of Family and Protective Services (“the Department”) brought this parental

termination case, which was tried before the court over a period of several days in June and July of

2009. After hearing the evidence, the trial court ordered termination of Ramirez’s parental rights as

well as those of J.C.R.’s father, Lonnie Rodriguez. Rodriguez has not appealed; thus, the termination

of Ramirez’s parental rights is the only subject of this appeal.
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         The trial court found that (1) Ramirez knowingly placed or knowingly allowed J.C.R. to

remain in conditions or surroundings which endanger the physical or emotional well-being of the

child (Texas Family Code §161.001(1)(D)); (2) engaged in conduct or knowingly placed J.C.R. with

persons who engaged in conduct which endangers the physical or emotional well-being of J.C.R.

(Texas Family Code §161.001(1)(E)); and (3) failed to comply with the court-ordered service plan1

(Texas Family Code §161.001(1)(O)). The trial court also found that termination was in J.C.R.’s best

interest. Ramirez does not contest this finding on appeal.

                     APPELLATE REVIEW OF PARENTAL TERMINATION ORDERS

         We apply the clear and convincing standard of proof in parental termination cases. In the

Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002); In the Interest of T.N.S., 230 S.W.3d 434, 438 (Tex.

App.—San Antonio 2007, no pet.). Clear and convincing evidence is defined as “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.” TEX . FAM . CODE ANN . § 101.007 (Vernon 2008).

When reviewing for legal sufficiency in a parental termination case, we 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 the Interest of J.F.C., 96 S.W.3d 256,

266 (Tex. 2002). When reviewing for factual sufficiency in a parental termination case, we consider

whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed

evidence in favor of its finding. Id. If, in light of the entire record, the disputed evidence that a


         1
          … The Department is not disputing Ramirez’s argument regarding the trial court’s finding that she failed to
comply with the court-ordered service plan, noting that only one statutory predicate ground is necessary to support
termination of parental rights. Therefore, we will not address this ground of termination on appeal.

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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.

        The provisions of the Family Code pertinent to this appeal are subsections 161.001(1)(D) and

(E). Subsection 161.001(1)(D) provides that a trial court may order termination of the parent-child

relationship if it finds that the parent has “knowingly placed or knowingly allowed the child to

remain in conditions or surroundings which endanger the physical or emotional well-being of the

child.” TEX . FAM . CODE ANN . § 161.001(1)(D) (Vernon 2008). Subsection 161.001(1)(E) provides

that a trial court may order termination of the parent-child relationship if it finds that the parent has

“engaged in conduct or knowingly placed the child with persons who engaged in conduct which

endangers the physical or emotional well-being of the child.” Id. at §161.001(1)(E).

        Endangerment is defined as exposing to loss or injury, to jeopardize. In the Interest of J.T.G.,

121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Under subsection 161.001(1)(D), we

look to whether the environment of the child is the source of endangerment to the child’s physical

or emotional well-being. Id. A parent’s conduct in the home can create such an environment. Id.

Under subsection 161.001(1)(E), we look to whether the endangerment of the child is the direct

result of the parent’s conduct, including acts, omissions, or failures to act. Id. Further, termination

under subsection (E) must be based on, not just a single act or omission, but a voluntary, deliberate,

and conscious course of conduct by the parent. Id. When the evidence pertaining to subsections

161.001(1)(D) and (E) is interrelated, we conduct a consolidated review. Id. at 126.




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       In conducting a review of a termination proceeding, it is not necessary that the parent’s

conduct be directed at the child or that the child actually suffer injury. Id. at 125. In determining

whether termination is necessary, courts look to parental conduct both before and after the child’s

birth. Id. The endangering conduct may include the parent’s actions before the child’s birth, while

the parent had custody of older children. In the Interest of J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).

       With these factors in mind, we now consider the evidence adduced at trial concerning

environmental endangerment and course of conduct endangerment of the physical or emotional well-

being of J.C.R.

                                          THE EVIDENCE

       Connie Ramirez, mother of J.C.R., testified that, before giving birth to J.C.R., she had

another child, C.G., who is deceased. C.G.’s father was Benito Gutierrez. The Department had

removed C.G. from her care when he was about a year old because it was discovered that he had a

spiral fracture of the tibia. Ramirez does not know how the fracture occurred. The Department took

temporary custody of C.G., and placed him with Ramirez’s aunt, Veronica Perez. Ramirez was

eventually allowed unsupervised visits with C.G. At the time of C.G.’s death, Ramirez was living

with Rodriguez, and she was pregnant with J.C.R. Her eight-year-old brother, George, was also

staying with them.

       On July 22, 2008, Ramirez had picked up C.G., who was then two years old, from Perez’s

house for an unsupervised visit. Next, she left C.G. at home with Rodriguez and George and went

to a therapy session at the Department at noon. When she finished with her appointment, she called

Rodriguez, who told her that C.G. had recently thrown up. Ramirez returned home at about 2:00 p.m.

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and saw that C.G. was in his room playing with some toys. According to Ramirez, she, Rodriguez,

George, and C.G. then all took a nap. After waking from his nap at about 5:00 to 6:00 p.m., C.G.

began screaming. He wanted water, but when Ramirez gave him some, he spilled it. He then

collapsed in Ramirez’s arms, his eyes rolled back in his head, and his feet turned blue. Ramirez had

to kneel down to pick him up because of her pregnancy.

       Ramirez and Rodriguez took C.G. to the car to take him to the hospital, and Ramirez called

Perez and told her that C.G. was not doing well. Perez told her to bring C.G. to her house because

she thought Ramirez might be exaggerating C.G.’s condition. Although Ramirez felt she should take

C.G. to the hospital, she has no idea why she did not. When they got to Perez’s house, Perez took

C.G. outside and watched him play for a couple of seconds. Perez then took C.G. to the hospital.

Ramirez testified that C.G. did not have any bruises or scratches on his body. C.G. died later that

day. Ramirez testified that Rodriguez had never hit her or C.G. She also testified that she does not

know whether Rodriguez murdered C.G. and she does not know who caused C.G.’s death.

       J.C.R. was born the day after C.G. died. The Department immediately removed J.C.R. from

Ramirez’s care.

       Although Rodriguez was called to the witness stand to testify, he invoked his Fifth

Amendment right against self-incrimination in response to most of the questions propounded to him.

Rodriguez has been charged with capital murder in connection with C.G.’s death.

       Veronica Perez, Ramirez’s aunt with whom C.G. was placed when he was removed from

Ramirez’s care in 2007, testified that C.G. lived with her for about a year. At some point, Ramirez

was allowed unsupervised visits with C.G. On July 22, 2008, C.G. was with Ramirez. Ramirez called

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Perez about 5:00 or 6:00 p.m. and said something was wrong with C.G. Perez told Ramirez to bring

C.G. to her house. When she saw Ramirez carry C.G. out of the car, he at first looked okay. Perez

asked him to come with her, but he wanted to stay with Ramirez. She saw bruises on his eye and his

chin. There were also multiple bruises on his stomach and a bruise on his back. His feet were cold

to the touch. Ramirez said C.G. had fallen from his bed and hit himself. Perez grabbed C.G. and took

him to the hospital. C.G. was at the hospital for an hour and a half and was then airlifted to

University Hospital where he died.

       Dr. Allen Hackley, an emergency physician at Frio Regional Hospital in Pearsall, Texas,

testified that when he first saw C.G. in the emergency room in 2008, C.G. was limp, unresponsive,

lethargic, obtundent, non-arousable, and flaccid. He did not respond to verbal or noxious stimuli,

except when he examined C.G.’s abdomen and back. C.G.’s abdomen was distended, and he

withdrew from palpation because of pain. His abdomen was very tense or firm, and bowel sounds

were absent. There was a large discolored area on his back, probably from an internal hemorrhage.

There were also some facial and chest markings. By the time Dr. Hackley saw C.G., he had lost one-

half to three-fourths of his blood volume internally. C.G. was grunting and groaning. Dr. Hackley’s

initial diagnosis was blunt force abdominal injury. It was a deliberate injury, not an accident. The

injuries were too severe for C.G. to have been running around and playing moments before he was

taken to the emergency room. After about twenty minutes, Dr. Hackley decided to call Medcom, the

Bexar County trauma transfer to take C.G. to San Antonio because Frio Regional Hospital is not a

trauma center. At that point, C.G. was in a morbid condition, about to die. According to Dr. Hackley,




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C.G. should have been brought to the emergency room immediately upon the impact that led to his

condition. He was obviously in need of immediate medical attention.

       Pedro Salinas, a police officer with the Pearsall Police Department, went to the Frio County

Hospital when C.G. was taken there after having been assaulted. The child had bruising and other

unidentified markings on his body. He was panting, breathing at a very high rate, and sounded as if

he was in pain. Officer Salinas took some photographs of C.G. at the hospital. The photographs show

discoloration of the child’s feet, purple bruising to the child’s eye, small purple bruising marks on

the chest, a large purple mark on the child’s back, and a swollen stomach. Officer Salinas eventually

spoke with both Ramirez and Rodriguez. Ramirez told him her aunt had taken C.G. to the hospital

and that she had not gone to the hospital herself because her family did not want her there. She did

not tell him how C.G. was injured. Rodriguez told Officer Salinas that he had struck C.G. in the

stomach.

       Officer Salinas also took pictures of C.G. during the autopsy. These photographs show

bruising to the child’s eye, a small cut above the left nipple, lacerations and bruising to the right

thigh and leg, bruising on the chest, a wound on the chin, puncture wounds on the left thigh, bruising

on the left knee, markings on the child’s ankle and leg, and a wound on the head.

       Guadalupe Olivares, a Department investigator, testified that he first became involved with

C.G. when C.G. received a fractured tibia in 2007. When Olivares received the referral, he called

Ramirez in and observed C.G. at his office. He observed that C.G. had bruises and scratches on him,

so he directed Ramirez to take C.G. to a doctor. She took him to Christus Santa Rosa where it was

discovered that C.G. had a fractured tibia. Olivares concluded there was reason to believe C.G. had

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been physically abused. Olivares also investigated the incident in which C.G. received fatal injuries.

He interviewed both Ramirez and Rodriguez. Ramirez had no answer for what had happened to C.G.

Rodriguez told Olivares that he would take the blame and that he would not put the blame on

Ramirez because she could not make it in prison.

       Dr. James Lukefahr, a pediatrician and child abuse specialist, testified that he examined C.G.

in July 2007, when he was thirteen months old. C.G. had multiple bruises to his face, neck and back,

and he had a broken leg. He concluded these were inflicted, not accidental, injuries. The broken leg

was a spiral fracture of the right tibia. The fracture was a healed fracture, meaning it was over two

weeks old. It surprised him that C.G. had not been brought in sooner. For this type of injury, the

child would cry and not want to move his leg for at least a week. He spoke with Ramirez, but she

did not give an explanation for the injury. Dr. Lukefahr concluded the injuries were as a result of

physical abuse.

       Dr. Lukefahr reviewed the medical records on C.G. from the 2008 admission to University

Hospital. He testified C.G. was near death as a result of multiple blunt force injuries to his abdomen.

He had lacerations of his pancreas, a laceration of his spleen and possibly kidneys, and a complete

tear of his small intestine. With these kinds of injuries, the patient would exhibit severe abdominal

pain and probably vomiting. This is a life-threatening injury, and over a very short period of time,

the patient would become critically ill. The patient would initially be crying, have trouble breathing

because of the pain, then become progressively weaker and more pale and then ultimately lose

consciousness. A two-year-old child with these injuries would immediately be in extreme pain and

would be crying. It would be very difficult for him to move, he would not be able to walk, and he

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would be immobilized by the extent of this trauma. It would not be possible for him to be walking

around and acting normally after this injury had been sustained. It is concerning if a parent waited

long after this kind of injury to take a child to the hospital because, instantly, upon having these

injuries, the child would have appeared very seriously ill. A responsible parent would have

immediately sought medical care for him. The force necessary to produce these kinds of injuries

would be very high energy impact. In a two-year-old child in a home environment, it would be a kick

or a punch. It is possible that C.G. survived a few hours before ultimately losing consciousness and

going into shock.

       Jesse Lindsey, a Department investigator, testified that he removed J.C.R. from Ramirez in

the hospital. The Department had received a referral for risk of physical abuse to J.C.R. because of

the severity of what occurred to C.G., the older sibling. According to the autopsy report, C.G. had

suffered blunt force trauma. They were not able to determine which parent inflicted the blunt force

trauma to C.G., so there was risk of physical abuse to J.C.R. Also, beyond the physical abuse, the

parents did not seek medical attention in a proper expedited manner, even though they knew C.G.

was sick. Lindsey was at the Frio Regional Hospital when C.G. was taken there. He observed C.G.

to be in extreme distress. C.G. was strapped down on a gurney because he was flailing all over the

place. C.G.’s stomach was extended so that it looked like he had a football in his stomach. He was

moaning, his eyes had rolled back, he was having difficulty breathing, and he had bruises all over

his body. At the hospital, Lindsey spoke with Rodriguez about what happened to C.G. Rodriguez

told Lindsey that he was watching C.G. while Ramirez was at a counseling session. Rodriguez said

he tried to get C.G. to eat some cereal, but C.G. threw up. Rodriguez said he tried to get C.G. up to

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walk around, and he took him out to the back yard. Finally, Rodriguez said a relative was called, who

saw the severity of the situation, and took C.G. to the hospital.

        Lisa Huizar, a clinical social worker, saw Ramirez for individual therapy following C.G.’s

death and J.C.R.’s birth. The Department referred her to address the issue of C.G.’s death and the

protection of J.C.R. According to Huizar, Ramirez was unable to identify how C.G. was hurt or who

had hurt C.G., and this inability to identify any risk factors would prevent Ramirez from making

necessary changes in the future. Huizar expressed concern that Ramirez could not be protective of

J.C.R. because Ramirez was unable to say how C.G. was hurt and because of the level of bonding

with her children that Huizar observed. Further, Huizar felt Ramirez was not as compassionate as

a grieving mother should be.

                                             DISCUSSION

        The Department removed J.C.R. from Ramirez’s care immediately upon J.C.R.’s birth. Thus,

the State’s termination case was based on the environmental and conduct endangerment involving

Ramirez’s older child, C.G. The evidence showed that C.G. had been removed from Ramirez’s care

a year before his death because he had suffered injuries, including a spiral fracture of the tibia, which

Ramirez was unable to explain. According to medical testimony, C.G.’s injuries were inflicted rather

than accidental. The medical testimony further showed that the fractured tibia was healed, meaning

it was over two weeks old. And, according to the doctor who examined him, C.G. would have cried

and not wanted to move his leg for at least a week. Thus, it was surprising to the doctor that C.G.

had not been brought to the doctor sooner. Both the doctor and the Department caseworker

concluded C.G. had been physically abused, resulting in C.G.’s removal from Ramirez’s care. At the

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time of C.G.’s death, he had been removed from Ramirez’s care for a year, although Ramirez had

been allowed unsupervised visits with C.G.

       The bulk of the evidence at trial, however, concerned the events leading up to and

surrounding C.G.’s death. The evidence showed that, during an unsupervised visit with C.G.,

Ramirez left C.G. with Rodriguez. When Ramirez returned home, she knew C.G. had thrown up,

but otherwise indicated he was playing in his room and then took a nap. Ramirez was home with

C.G. from about 2:00 p.m. until approximately 5:00 or 6:00 p.m., when he awoke from his nap and

collapsed in her arms. According to Ramirez, C.G. did not have bruises or scratches on his body.

After C.G. collapsed, she and Rodriguez were going to take C.G. to the hospital; however, they

instead took him to the home of Ramirez’s aunt, Veronica Perez. Perez realized fairly quickly that

C.G. needed immediate medical attention and rushed him to the hospital.

       All the testimony concerning C.G.’s condition when he arrived at the hospital indicates C.G.

had suffered severe life-threatening injuries that had been inflicted upon him. He was covered in

bruises and lacerations, and his stomach was very distended due to blunt force trauma. According

to the medical testimony, C.G. was already near death. As it turned out, C.G. had internal injuries

to his pancreas, spleen, kidney, and small intestine. According to the medical testimony, a patient

with these kinds of injuries would exhibit signs of severe abdominal pain, would be crying, have

trouble breathing and would not be able to walk. The medical testimony also showed that, with these

kinds of injuries, a parent should have immediately taken the child to the hospital because it should

have been obvious he was in need of immediate medical attention.




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          Thus, the evidence describing C.G.’s appearance at the hospital, including the testimony

regarding his condition, is at odds with Ramirez’s testimony that, during the afternoon preceding his

death, C.G. was playing and acting normally until he collapsed in her arms at around 5:00 or 6:00

p.m. It is also inconsistent with her testimony that he had no bruises or scratches on his body. And,

notably, as with the previous injury a year earlier when C.G. had suffered another intentional injury,

a spiral fracture of the tibia, Ramirez was unable to explain how C.G. was injured. C.G. sustained

injuries which resulted in his death; yet, Ramirez could not explain them and, despite knowing C.G.

had been under Rodriguez’s care, and that he confessed to hurting C.G., was unwilling to place the

blame on Rodriguez for C.G.’s death. The medical testimony indicates Rodriguez should have been

aware of C.G.’s need for immediate medical attention, yet she did not seek it until he was near death.

Even then, she took C.G. to her aunt’s house instead of to the hospital. Lastly, according to

Ramirez’s therapist, if Ramirez was unable to identify the risk factors that resulted in injury and

death to C.G., then Ramirez would be unable to make the changes necessary to protect J.C.R. in the

future.

          We conclude the trial court did not err in ordering termination of Ramirez’s parental rights

to J.C.R. based on both environmental and conduct endangerment. There is both legally and factually

sufficient evidence to support the trial court’s findings. Accordingly, we affirm the trial court’s

termination order.

                                                Karen Angelini, Justice




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