      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00361-CV



                                    Nilda Rodriguez, Appellant

                                                  v.

                Texas Department of Family and Protective Services, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
           NO. 233,352-B, HONORABLE RICK MORRIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               In December 2008, following the death of D.G., appellant Nilda Rodriguez’s two-

month-old son, the Department of Family and Protective Services filed a petition seeking

conservatorship of her five surviving children. About a year later, Rodriguez had another baby, and

the Department amended its petition to include that child. Following a bench trial, the trial court

signed a decree terminating Rodriguez’s parental rights to her six surviving children.1 Rodriguez


       1
           This case was first heard by an associate judge, who recommended termination. See Tex.
Fam. Code Ann. §§ 201.001, .005, .007 (West 2008). Rodriguez appealed and sought a trial de novo
in the referring court. See id. §§ 201.012 (West 2008), .015 (West Supp. 2010). In the trial de novo,
the Department introduced medical records and excerpts from testimony presented to the associate
judge, specifically the testimony of Dr. David Hardy, a pediatrician specializing in child abuse and
critical care, who reviewed D.G.’s autopsy and medical records. Rodriguez’s attorney objected to
the introduction of only part of the underlying record and objected that some of the records contained
hearsay. The trial court overruled the objections and admitted the evidence. See id. §§ 201.009(e)
(West Supp. 2010) (“On a request for a de novo hearing, the referring court may consider testimony
or other evidence in the record, if the record is taken by a court reporter, in addition to witnesses or
other matters presented under Section 201.015.”), .015(c) (“referring court may also consider the
filed a notice of appeal from the trial court’s decree, but after reviewing the record, her appointed

attorney filed a brief concluding there were no non-frivolous grounds to support reversal.2

Rodriguez has filed a pro se brief raising several complaints. We affirm the trial court’s decree.


                                          Factual Summary

                At the time of trial in mid-2010, Rodriguez’s children ranged in age from six months

to twelve years old. Cynthia Richards, a caseworker who had been assigned to the family for the six

months before trial, testified that in 2005, the Department investigated allegations that David Griffin,

the father of D.G. and Rodriguez’s four youngest children, had sexually abused I.F., Rodriguez’s

oldest child, and physically abused Rodriguez. Although Rodriguez testified in a hearing in that

earlier investigation that she “had no intention . . . of going back to David Griffin,” she has since had

four children with him and was still involved with him at the time of trial. In 2008, Rodriguez gave

birth to twins, and about two months later, one of them, D.G., died. Medical experts concluded that

D.G. died from of starvation and dehydration. The Department sought conservatorship of the five

surviving children immediately after D.G.’s death and then sought conservatorship of an infant born

about a year later. At the time of trial, Rodriguez was under indictment for the murder of D.G.

                At trial, Richards testified that the children were endangered by Rodriguez’s decision

to allow Griffin, who had sexually abused one of the children, to continue to live with the family and


record from the hearing before the associate judge”).
        2
           This and other Texas courts have held that it is appropriate in a parental termination case
to file a brief asserting that the appeal is frivolous. See, e.g., Matthews v. Texas Dep’t of Protective
& Regulatory Servs., No. 03-04-00184-CV, 2005 Tex. App. LEXIS 1231, at *2 (Tex. App.—Austin
Feb. 17, 2005, no pet.) (mem. op.); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th
Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

                                                   2
have contact with all of the children. She also testified that I.F. had just been admitted to a

psychiatric hospital for hallucinations and violent behavior, that Rodriguez’s two other oldest

children also had “issues,” and that one of them had “also been in a psychiatric hospital within the

last six months.” Richards said that Rodriguez took required classes and had appropriate visits with

the children after their removal, there was no evidence that Rodriguez’s residences were ever unsafe

or inappropriate for children, and Rodriguez’s therapist provided positive progress reports.

However, Richards also testified that the therapist “didn’t feel Mrs. Rodriguez had learned anything

from the therapy sessions.” Richards testified that she believed that termination of Rodriguez’s

parental rights was in the children’s best interests. The oldest two children were probably going to

be placed with their father or his family, and two families were being reviewed for placement of the

other four children.

               The Department introduced a transcript of testimony by Dr. David Hardy, a

pediatrician who reviewed the autopsy reports and concluded that D.G. died of malnourishment and

dehydration. At birth, D.G. weighed five pounds, six ounces, and at death about six weeks later he

weighed six pounds; D.G.’s twin sister weighed seven and one-half pounds about one week after

D.G.’s death. Hardy noted that D.G. had “a history of feeding difficulties” and was “on the low

side” of the statistical weight scale when he was born. Hardy testified that it was not normal for an

infant to gain only ten ounces in two months. Although Hardy could not give an opinion as to

whether Rodriguez had purposefully denied D.G. nourishment, he described D.G.’s appearance at

the time of his death and said that a parent who had already raised other children from infancy should

have been able to tell that the child was in distress and needed medical attention. He also testified

that Rodriguez should have noticed physical differences between D.G. and his twin sister.

                                                  3
               The Department also introduced D.G.’s medical records, photographs and the report

from D.G.’s autopsy, and a report about Rodriguez prepared by a psychologist who concluded that

Rodriguez had an I.Q. of 77 and borderline intellectual functioning.3 The psychologist stated that

Rodriguez had “poor capacity” to be an appropriate parent, showed no remorse over D.G.’s death,

did not take responsibility for her situation, and blamed the Department for her children’s removal.

               Rodriguez testified on her own behalf and asserted that the 2005 investigation was

initiated because Griffin made false allegations against her. Rodriguez testified that it was during

that investigation that I.F. made her outcry of sexual abuse and the Department learned that Griffin

had physically abused Rodriguez. She admitted that she was ordered to stay away from Griffin

during the earlier investigation and that she conceived four children with him after the investigation

concluded. Rodriguez attacked the Department, asking whether the Department had helped her and

the children and saying, “Did you guys investigate him? Did you guys go and take this man to jail?”

Rodriguez was asked whether she thought Griffin should be investigated and she said, “Hey, yes,

I think so.” She said she continued to have a relationship with him “[b]ecause he’s helping me out

in the situation where I’m in now and that’s—I’m the mother of his children.”

               In its findings of fact, the trial court found that the 2005 Department investigation was

dismissed and the children were returned to Rodriguez’s care based at least in part on her testimony

“that she did not intend to have any further contact with David Griffin.” The court also found that

the three oldest children saw Griffin abuse Rodriguez. The court found that D.G. died from



       3
         Rodriguez’s attorney objected to the psychologist’s report, arguing that the Department
should have to present the psychologist’s opinion through live testimony and not merely through a
report. The trial court overruled the objection and admitted the report.

                                                  4
starvation and dehydration, that he had no birth defects that prevented him from receiving

nourishment, and that Rodriguez “knowingly failed to properly care” for him. The trial court

concluded that Rodriguez had endangered her children by allowing Griffin to live with the family

after he abused Rodriguez and by causing D.G. to die from starvation and dehydration. Finally, the

court concluded that termination was in the children’s best interest.


                                             Discussion

               On appeal, Rodriguez’s appellate attorney has filed a brief stating that after reviewing

the record, she believes that the appeal is frivolous. Counsel has presented a professional evaluation

of the record and explained why she believes there are no arguable grounds for reversal. Rodriguez

has filed a pro se brief arguing that (1) the trial court should have heard evidence that would have

supported her credibility; (2) the court considered “facts not in evidence, that aren’t even facts,”

specifically evidence about abrasions near D.G.’s mouth, an investigation into I.F.’s accusation, and

the fact that at the time of the trial, Rodriguez had not been arrested or convicted of D.G.’s murder;

(3) the medical experts who performed the autopsy did not testify and Dr. Hardy relied on hearsay

in reaching his conclusions; (4) Rodriguez’s parental rights were terminated before criminal

proceedings were held; (5) Richards provided false testimony and lacked personal knowledge of the

case; and (6) Rodriguez received ineffective assistance of counsel at trial and on appeal.

               We have conducted our own review of the record and we agree with counsel that the

appeal is frivolous. We will briefly address Rodriguez’s arguments,4 beginning with her sixth issue

complaining of ineffective assistance of counsel. Rodriguez asserts that she received ineffective


       4
          See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (appellate court’s
analysis of pro se complaints does not imply that complaints are arguable or not frivolous).

                                                  5
assistance both at trial and on appeal, asserting that her attorneys did not follow her wishes, failed

to introduce evidence she wanted admitted on her behalf, and misled her by telling her “they would

do one thing on her behalf, only to do the opposite.” Having reviewed the record and the vigorous

and professional assistance provided by Rodriguez’s trial attorney, we disagree.

               Trial counsel was active and engaged in the trial, raising proper and timely objections

and attempting to show that it might not have been clear that D.G. was in distress, that Rodriguez

was a loving and competent mother who acted to the best of her intellectual abilities, that the medical

records did not establish Rodriguez acted or failed to act intentionally, and that there might be a

medical cause for D.G.’s death rather than an act or omission by Rodriguez. Trial counsel also

complied with the statutes governing how a parent must preserve her arguments for appeal. See Tex.

Fam. Code Ann. § 263.405 (West 2008) (procedures to appeal termination order). Appellate counsel

has presented a thorough review of the record and concluded that there are no non-frivolous grounds

for reversal, and her failure to find non-frivolous grounds to assert does not amount to ineffective

assistance of counsel. See Hall v. State, 862 S.W.2d 710, 717 (Tex. App.—Beaumont 1993, no pet.)

(counsel not ineffective for filing frivolous brief); Ford v. State, 794 S.W.2d 863, 868 (Tex.

App.—El Paso 1990, pet. ref’d) (“Appellant cannot dictate the points of error presented by counsel

on appeal.”). Based on this record, Rodriguez received reasonably effective assistance of counsel

both at trial and on appeal. See In re J.P.B., 180 S.W.3d 570, 574-75 (Tex. 2005).

               In her first issue, Rodriguez asserts that the trial court should have heard evidence

about her 911 call and her attempts to revive D.G. She also asserts that the court should have been

given her other children’s school and medical records, their videotaped statements to the

Department, reports about Rodriguez’s weekly therapy, and “transcripts from criminal court.” This


                                                  6
argument is more properly considered a part of Rodriguez’s claim of ineffective assistance of

counsel, which we have already addressed, and other than a general description of the kind of

evidence she wanted introduced, she does not explain what the evidence would have shown or how

it would have helped her case, much less showing that the evidence likely would have resulted in

a different outcome. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995) (“A

successful challenge to evidentiary rulings usually requires the complaining party to show that the

judgment turns on the particular evidence excluded or admitted.”).

               Further, the court was presented with evidence that Rodriguez was distraught when

D.G. was brought to the hospital, and neighbors and friends testified that while they were in her care,

Rodriguez’s other children were thriving, happy, and never appeared to be neglected. The fact that

most of Rodriguez’s children loved their mother and were happy and healthy does not change the

fact that D.G. died of starvation and dehydration when he was two months old and in Rodriguez’s

care, even if Rodriguez did not intentionally harm him. Although Rodriguez’s monthly therapy

progress reports were not presented, Richards testified that those reports were positive but that the

therapist also concluded that Rodriguez had not learned from her ongoing therapy sessions. Finally,

Rodriguez does not explain what criminal records she wanted introduced or why, nor does she

explain what her children said in their statements to the Department or why they would have

bolstered her credibility as a mother. See id. We overrule Rodriguez’s complaints related to

evidence not admitted at trial.

               As for Rodriguez’s complaints about the admission or “assumption” of “facts not in

evidence,” Dr. Hardy testified that the abrasions near D.G.’s mouth might have been caused by



                                                  7
adhesive tape used in the hospital’s attempts to revive him, so there was little chance that the trial

court was overly swayed by that information, especially in light of the evidence about D.G.’s overall

physical condition at the time he died. Although Rodriguez asserts that the Department never

investigated I.F.’s claims of sexual abuse by Griffin, a Department caseworker testified and

Rodriguez admitted that in the 2005 proceeding, Rodriguez told the Department she would not have

further contact with Griffin but then continued to have a relationship with him. The trial court found

that the Department dismissed its case based in part on that representation, and it follows that the

Department likely concluded it need not conduct further investigation after Rodriguez represented

that she would protect the children from Griffin.          Finally, whether the Department further

investigated Griffin or sought to have him charged criminally has no relevance to whether Rodriguez

endangered the children by her conduct related to D.G.

                Several of Rodriguez’s complaints relate to the fact that she had not been convicted

of murder at the time of the termination trial. However, the family code allows a parent’s rights to

be terminated if the parent places a child in jeopardy, regardless of whether criminal charges support

the termination proceeding. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2010). Although it

is a ground for termination if a parent is convicted of certain crimes against a child, see id. § 161.001

(l), there is no requirement that she be convicted of, or even criminally charged with, misconduct that

can give rise to a termination proceeding. Thus, the fact that at the time of trial Rodriguez had not

been convicted of a crime in connection with D.G.’s death is of no import.

                Rodriguez complains that Dr. Hardy relied on autopsy and medical records prepared

by doctors who were not called to testify, asserting that this allowed improper hearsay into the



                                                   8
record. However, an expert witness may rely on records and information prepared by others in

reaching his conclusions. See Tex. R. Evid. 703; In re A.J.L., 136 S.W.3d 293, 301 (Tex.

App.—Fort Worth 2004, no pet.). Further, medical and autopsy reports fall into an exception to the

hearsay rule and are allowed into evidence without the preparing doctor appearing in court to explain

them. See Tex. R. Evid. 803(4), (8); Mitchell v. State, 191 S.W.3d 219, 221-22 (Tex. App.—San

Antonio 2005, no pet.). Finally, the family code allows the referring court in a de novo hearing to

consider testimony before an associate judge. See Tex. Fam. Code Ann. §§ 201.009(e), .015(c)

(West Supp. 2010). Thus, the trial court did not err in admitting the transcription of Hardy’s

testimony into evidence.

               Finally, Rodriguez asserts that the Department made false allegations against her and

that Richards’s testimony was incredible because of her lack of personal knowledge. Richards

testified that she had been the family’s caseworker for about six months leading up to trial. She was

not involved with the family during the 2005 investigation or for the year and one-half following

D.G.’s death and the surviving children’s removal. Richards, as a Department caseworker, was

entitled to rely on and review Department records and to discuss the case with other Department

employees. Although she was not personally involved in the case for the first part of this proceeding,

at the time of trial, she had sufficient knowledge about the family’s situation and history and about

Rodriguez’s conduct and culpability in D.G.’s death. As for the complaint about the Department

making false allegations, Rodriguez does not explain what the allegations were.5 The trial court did


       5
          Rodriguez also complains, “False allegations against Mr. Griffin due to no investigation
or incentive to start one.” The substance of this complaint is not entirely clear, but we have already
noted that the Department was not obligated to conduct further investigation into I.F.’s allegations

                                                  9
not err in allowing Richards to testify about her experience with the family or about Rodriguez’s and

her family’s history and interaction with the Department.


                                            Conclusion

               We have addressed all of Rodriguez’s complaints, determining that they have no

merit. We agree with appellate counsel that this record presents no non-frivolous grounds for

reversal. We affirm the trial court’s decree of termination and grant counsel’s motion to withdraw

as attorney of record.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: August 4, 2011




of abuse following Rodriguez’s representations that she would have no further conduct with Griffin.
We also note that Rodriguez testified that Griffin initiated the 2005 Department investigation by
making false allegations against her.

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