                                 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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