in the Interest of M.H. and H.H., Children ( 2022 )

AFFIRMED and Opinion Filed August 5, 2022
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00017-CV
IN THE INTEREST OF M.H. AND H.H., CHILDREN
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-30033-2020
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Carlyle
Mother and Father1 appeal from the trial court’s judgment terminating
parental rights to their children, M.H. and H.H., following a bench trial. Some, but
not all, of their issues on appeal overlap; we affirm in this memorandum opinion.
See TEX. R. APP. P. 47.4.
Twelve-year-old M.H. told her aunt that Father had sexually abused her. In
February 2020, the Texas Department of Family and Protective Services received a
referral, and M.H. gave a forensic interview. In the interview, M.H. revealed that
approximately ten days earlier, she woke up and went to Father’s room to watch the
1
Father adopted M.H. when she turned six. He is H.H.’s biological father.
news. M.H.’s sister, H.H., was asleep at the time. Father was in his bed under the
covers, and told M.H. to shut the door. She sat on the edge of the bed and Father
began scratching her back. Father then said, “I want to show you something.” He
asked if she wanted to see it, and she said, “No.” Undeterred, Father removed the
covers and showed her his “private part.” She said that he was “squeezing it and
rubbing it,” and then “white stuff came out.” Father told her, “This is what comes
out of a male’s private, and it makes girls pregnant.” He grabbed some nearby blue-
and-white underwear to clean up the “white stuff” from his stomach and then threw
the underwear in the laundry basket.
When asked to describe Father’s private part, she said “it was really long and
had two balls under it.” She also demonstrated a pumping action when describing
what she meant by “squeezing” and “rubbing.” Father told M.H. not to tell anyone
about the incident because he could get in trouble. M.H. said she did not want Father
to get in trouble, but felt she had to tell someone.
On a different day, M.H. said Father showed her “his private” again, but
nothing came out of it that time. He grabbed her hand to try to make her touch it, but
she did not let him.
Another time, Father asked her to pull up her shirt so he could see her “boobs.”
M.H. did not pull her shirt up, but Father touched her over the shirt. He asked her to
pull her pants down so he could see her pubic hair. She refused, and Father got upset.
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M.H. detailed another incident when she was playing a game on her phone in
bed with both Father and H.H. Father began sending her messages on her phone
asking if she wanted to know about male parts. Father then took his hand and began
massaging her vulva on top of her shorts. He stopped when she told him to, but he
made a noise suggesting he was unhappy. Although H.H. was there, she did not
appear to notice what was happening.
M.H. also testified about an earlier time when she was at home and witnessed
her maternal grandmother with Father’s penis in her mouth. M.H. told Mother, and
Father admitted to Mother that M.H. was telling the truth.
Michelle Lanier performed the forensic interview. She testified at trial that she
believed M.H.’s outcry was credible. When asked to elaborate, she explained that
M.H. was consistent in her statements; she was very detailed in describing what
happened to her body; she often demonstrated by using her hands; she provided a lot
of context, including a detailed timeline; she provided sensory details; she resisted
opportunities to expand or exaggerate her allegations; and there were no red flags
suggesting she fabricated her allegations.
Department investigator Brenda Martinez also testified at the trial. She said
that when authorities told Mother about the outcry, Mother refused to believe it and
insisted M.H. was lying. Mother said M.H.’s aunt must have encouraged her to make
a false outcry because she was jealous of Mother’s “good relationship” with Father.
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Mother admitted, however, that Father had engaged in multiple extra-marital affairs
and had engaged in oral sex with Mother’s own mother. M.H.’s aunt had also
accused Father of sending her lewd text messages, which Mother testified she did
not believe despite the fact that Father admitted sending them.
After the forensic interview, police arrested Father and charged him with
aggravated sexual assault of a child.2 Detective Sarah Wittenburg testified that she
viewed M.H.’s forensic interview and found it credible. In addition, police found
M.H.’s journal, in which she wrote entries corroborating the allegations against
Father.
A few weeks later, concerned that Father may have abused M.H. while she
slept, M.H.’s aunt took her for a sexual assault examination. Her aunt conveyed the
abuse allegations to the nurse practitioner performing the exam, Sandra Onyinanya.
In addition, M.H. told Ms. Onyinanya that Parents sometimes spanked her to the
point of causing bruises, and M.H. did not feel safe around Father because he hit her.
She also reported having nightmares about Father getting out of jail and harming
her. Ms. Onyinanya discovered no signs of physical trauma during the exam, which
she noted was consistent with the vast majority of child sexual assault exams, and it
did not rule out abuse.
2
The case, from Collin County, no. 219-83772-2020, was dismissed the day of trial, June 30, 2022.
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Mother testified at the trial that she did not believe M.H.’s outcry and would
never believe it without physical proof. She said M.H. was prone to lying, and
credited Father’s explanation, that M.H. had walked in on him masturbating. Mother
said she trusted Father because she did not “believe that he would have gone from
someone older than him to someone younger.” And she would have no reservations
about allowing Father to be alone with either child, as long as it would not violate
the conditions of his bond. Mother admitted she had initially thought M.H. was lying
about Father having oral sex with her grandmother, although it ended up being true.
Concerning her plans for the children, Mother testified she was only interested
in obtaining custody of H.H. because she could not trust M.H. in general or to be
around H.H. Though she did not want M.H. returned to her, she did not want her
parental rights terminated. She thought M.H. belonged in a treatment facility,
although she had no plan for providing or paying for that treatment. She insisted she
could “figure everything out.”
With respect to H.H., Mother’s plan was to have Father temporarily move out
once she regained custody. Father would be “homeless for a while,” living out of his
car, but keeping his belongings at the family home. Mother thought Father should
be able to visit H.H. under either her or her parents’ supervision. And she thought
she could be trusted to supervise the children because she would not do anything
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that risked Father going back to jail. If H.H. were not returned to her, then she would
continue living with Father.
Father asserted his Fifth Amendment rights when questioned at the trial. But
he confirmed it was his position that M.H. was “lying about all of the allegations in
this case.” He also agreed with Mother’s plan to have him live out of his car
temporarily if she regained custody of H.H.
When trial resumed after a two-week break, Parents’ plans had changed.
Mother testified that, at her father’s prompting, Father had recently moved in with
her family in Canton. She acknowledged she was aware that one of the conditions
on Father’s bond was that he remain in Collin County or its contiguous counties, and
she knew Canton was not in any of those counties. She said she did not know whether
Father violated his bond conditions because she did not know what he discussed with
his attorney. In any event, she reiterated that she did not believe Father is a danger
to the kids, and did not trust M.H.
Other testimony at the trial included Ms. Martinez’s observation that Mother
was very cold towards M.H. during her visits, while being “warm, energetic, and
playful with H.H.” Ms. Martinez added that Mother did not attend one of the
scheduled meetings with the Department because she was busy bailing Father out of
jail. Though she acknowledged that H.H. was bonded with Mother, Ms. Martinez
believed Mother had endangered both children by steadfastly supporting Father,
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despite being aware of his sexually deviant behavior and M.H.’s allegations against
him.
Counselor Amy Weems, H.H.’s therapist and M.H.’s former therapist,
testified that M.H. felt betrayed when Mother did not believe her outcry. Ms. Weems
believed M.H. was being honest about her allegations against Father, noting that
M.H.’s description of the abuse was consistent and unwavering. She also believed
M.H.’s behavioral issues, which included lying and stealing, were consistent with
someone who had experienced trauma. With respect to H.H., she said H.H. is sad
when she can’t see her parents, and she definitely wants to return home.
M.H.’s current therapist, Dr. Sharon Mock, similarly testified that Mother’s
refusal to believe M.H. had traumatized her. She said M.H. does not want to return
to Parents because she is both scared she would suffer further abuse and that Mother
would not protect her.
Jessica Deany testified on behalf of CASA and expressed her belief that
termination was in the best interest of both children because Father was sexually
abusive and Mother refused to believe M.H.’s outcry or separate from Father. She
noted that Mother would not cooperate in placing the children with family friends
who might be willing to take them in because Mother did not want anyone to learn
about the situation. Moreover, Mother said that if M.H. was ever going to come back
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to live with her, she would have to rebuild Mother’s trust. CASA was hopeful the
children would be adopted.
Department conservatorship worker Estefanny Rodriguez testified on behalf
of the Department that its plans for the children involved finding adoptive homes for
each of them, and that she believed there was a good chance for adoption. She did
not think Mother followed the court’s order to maintain safe and stable housing
because she allowed Father, who presented a danger to the children, to continue
living at the home. Ms. Rodriguez was concerned that Mother would not report any
further outcries and that she would give Father access to H.H. The Department
expected Mother to develop a plan to protect the children and provide a home in
which Father would not be allowed, to listen to the children, and to provide them
with treatment and counseling. According to Ms. Rodriguez, although Mother
completed her required services, Mother’s steadfast support for Father, while
ignoring M.H.’s outcry, endangered both children.
As for Father, Ms. Rodriguez testified it was the Department’s position that
Father endangered M.H. by grooming her for sexual abuse, by sexually abusing her,
and by exposing her to sexual content. And although H.H. was not a direct victim,
Father had endangered her as well because she was present in the same environment
in which he abused M.H.
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The Department believed termination was in both children’s best interest—to
protect them from abuse and to provide permanency through adoption. That said,
given H.H.’s strong bond with her parents, the Department was willing to consider
allowing her to have further parental contact post-termination.
At the conclusion of the trial, the court terminated both Parents’ rights under
subsections (D), (E), and (O) of family code section 161.001(b)(1). In explaining its
reasoning, the court began by noting its confusion as to why they were litigating
about M.H.: “I don’t know why we were even here contesting [M.H.] when there is
no parent here even asking for the child to be returned home, which is mind blowing
in and of itself.”
The court also found Mother’s demeanor and testimony during the trial
especially troubling:
[Y]ou sit up there as a witness and it’s okay that he and your mom were
engaged in sexual activity. It’s okay that things were going on between
him and your sister. Apparently it’s okay that things have gone on with
him and your daughter. And the flat effect that you had, no emotion, no
hurt, no anger, no nothing, you literally just sat up there like we were
talking about what we had for lunch, which . . . either there is some
severe mental illness that needs to be addressed or total denial or total
fear, one of them, because that is not a normal response from any
woman that hears these things or learns of these things.
The trial court followed up, expressing concern that it sounded like Mother had “just
completely shut down.” And given her refusal to believe any allegations against
Father to which he did not confess, the court was worried Mother would not believe
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any future outcries of abuse. It seemed to the court that the only person Mother was
concerned about was Father, and there are “simply no boundaries at all” when it
comes to Father’s behavior.
The court also found it important that Mother waited until halfway through
the trial to take any steps to provide a safe home environment for the children by
having Father move out. And even then, it was not her idea. Moreover, Parents’ plan
was ill conceived because Father moved to “a county he’s not supposed to be in[,]
violating bond conditions, [and] jeopardizing going back to jail.”
Ultimately, while acknowledging H.H.’s strong desire to return to Parents, the
court concluded the children’s safety was paramount, and termination was in each
child’s best interests.
THE EVIDENCE SUFFICIENTLY SUPPORTS TERMINATION
Parents first contend the evidence is legally and factually insufficient to
support termination.3 A trial court may terminate the parent-child relationship
involuntarily only if it finds by clear and convincing evidence that: (1) one or more
of the statutory grounds for termination enumerated in the family code has been
established; and (2) termination is in the child’s best interest. TEX. FAM. CODE
3
To the extent Parents argue as part of their sufficiency challenges that their attorneys were ineffective
for failing to adequately cross-examine witnesses or present alternative factual theories, they have waived
those issues by failing to adequately present them for our review. In addition to the multifarious nature of
their sufficiency issues, Parents wholly fail to cite or apply any relevant authorities to support their
conclusory assertions of constitutional ineffectiveness. See TEX. R. APP. P. 38.1(i); Sprowl v. Stiles, No. 05-
18-01058-CV, 2019 WL 3543581, at *4 (Tex. App.—Dallas Aug. 5, 2019, no pet.) (mem. op.).
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§ 161.001(b). “Clear and convincing evidence” is “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.” Id. § 101.007.
Because a court may terminate based on only one predicate finding under
family code section 161.001(b)(1), we affirm if the evidence supports any of the
statutory bases the trial court found. In re N.G., 577 S.W.3d 230, 232 (Tex. 2019)
(per curiam). But where, as here, a parent challenges the sufficiency of the evidence
supporting the trial court’s findings under subsections (D) or (E) of section
161.001(b)(1), we must determine whether termination is supported under either or
both of those grounds because of their potential collateral consequences on the
parent’s rights to other children. See id. at 235; TEX. FAM. CODE § 161.001(b)(1)(M).
Our standards of review in these cases reflect the elevated burden of proof at
trial. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). Both legal and factual sufficiency
reviews require us to review the evidence to determine whether the factfinder
reasonably could have formed a firm belief or conviction that the grounds for
termination were established. See In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). The
difference between the two lies primarily in the way we consider evidence contrary
to a finding. Id. at 630–31.
Our review of legal sufficiency requires us to view all the evidence in the light
most favorable to the finding. Id. Thus, we assume the factfinder resolved all factual
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issues in favor of the finding and disregard all disputed evidence to the contrary. Id.Our factual sufficiency review, in contrast, requires us to weigh the disputed
evidence contrary to the finding and determine whether in light of the entire record
the evidence that could not reasonably be credited in favor of the finding is so
significant that it would prevent the formation of a firm belief or conviction that the
finding is true. Id. at 631. In applying this standard, we must be mindful not to
scrutinize the evidence to the point where “the only factfindings that could withstand
review are those established beyond a reasonable doubt.” In re C.H., 89 S.W.3d 17,
26 (Tex. 2002).
Section 161.001(b)(1)(D) requires that the parent “knowingly allowed the
child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child,” and subsection (E) requires that the parent
“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.” Both
subsections require proof of endangerment, which in this context means “to expose
to loss or injury or to jeopardize a child’s emotional or physical health.” In re K.B.,
No. 05-19-00700-CV, 2019 WL 5485320, at *3 (Tex. App.—Dallas Oct. 25, 2019,
no pet.) (mem. op.). It is not necessary, however, that the conduct be directed at the
child or that the child is injured. Id. The primary distinction between the two
subsections is the source of the child’s endangerment. Id.–12–
Subsection (D) focuses on whether endangerment results from the child’s
environment. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). “Environment”
refers to both the acceptability of living conditions and the parent’s conduct in the
home. Id. “A child is endangered when the environment creates a potential for danger
that the parent is aware of but consciously disregards.” Id. “Inappropriate, abusive,
or unlawful conduct by a parent or other persons who live in the child’s home can
create an environment that endangers the physical and emotional well-being of a
child as required for termination under subsection (D).” Id.Subsection (E), in contrast, focuses on whether endangerment results directly
from the parent’s conduct, including the parent’s acts, omissions, or failures to act.
In re C.J.B., No. 05-19-00165-CV, 2019 WL 3940987, at *6 (Tex. App.—Dallas
Aug. 21, 2019, no pet.) (mem. op.). Subsection (E) termination must be based on
more than a single act or omission; it requires a voluntary, deliberate, and conscious
course of conduct by the parent. Id.Child sexual abuse necessarily endangers a child’s physical or emotional well-
being. See In re L.J.H., No. 05-21-00183-CV, 2021 WL 4260769, at *12 (Tex.
App.—Dallas Sept. 20, 2021, no pet.) (mem. op.). “[P]redatory or harmful conduct
directed at one child will support termination of parental rights as to a different child,
because all children at risk for the same conduct by the same predator are
endangered.” Id; see also In re E.A.G., 373 S.W.3d 129, 143 (Tex. App.—San
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Antonio 2012, pet. denied) (“Sexual assault of a child in the home is conduct we
may infer will endanger the physical and emotional well-being of other children in
the home who may either discover the abuse or be abused themselves.”).
Parents contend the evidence merely shows a few instances where M.H.
“walked in” on one or both of them engaging in sexual conduct. The trial court, as
factfinder, was free to credit testimony concerning M.H.’s outcry, in which she
alleged Father abused her directly on several occasions. In her forensic interview,
M.H. alleged that Father intentionally: (1) rubbed her vulva over her clothing while
H.H. was in the room; (2) masturbated in front of her; (3) asked her to remove her
clothes; (4) touched her breasts over her clothing; and (5) exposed himself to her.
This evidence alone sufficiently supports a conclusion that Father sexually abused
M.H. on more than one occasion. See Rodrigues v. State, 819 S.W.2d 871, 873 (Tex.
Crim. App. 1991) (outcry testimony alone sufficient to support conviction beyond a
reasonable doubt). Accordingly, the trial court could have formed a firm belief or
conviction that Father knowingly allowed M.H. and H.H. to remain in conditions
that endangered their physical or emotional well-being and that he engaged in a
course of conduct that endangered them. See TEX. FAM. CODE § 161.001(b)(1)(D),
(E).4
4
Because we conclude Father’s termination was supported under subsections (D) and (E), we need not
address his challenge to the trial court’s findings under subsection (O). See In re K.B., 2019 WL 5485320,
at *4.
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As for Mother, she steadfastly refused to believe M.H.’s outcry, despite the
fact that allegations about Father’s previous inappropriate sexual conduct with other
family members had proved to be true. And M.H.’s counselors testified that
Mother’s refusal to believe M.H. traumatized her. Mother’s intransigent “inclination
not to believe the sexual abuse allegations demonstrates a pattern of endangerment
to the emotional well-being of her children.” See In re S.R.M., No. 04-21-00168-CV,
2021 WL 4875538, at *5 (Tex. App.—San Antonio Oct. 13, 2021, no pet.) (mem.
op.).
The record also reflects that Mother repeatedly placed Father’s interests above
the physical and emotional well-being of the children. Mother skipped a scheduled
meeting with the Department so she could bail Father out of jail. She refused to
cooperate with the Department in finding potential placements for the children out
of fear her friends might learn about the allegations against Father. She refused, at
least until the middle of trial, to take any measures to mitigate the danger to the
children by agreeing to meaningfully limit Father’s access to the family home—a
prerequisite for the children’s safe return. Even then, it was not her idea for Father
to move out, and she made clear that she had no reservations about leaving Father
alone with either child. On this record, the trial court could have formed a firm belief
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or conviction that Mother engaged in a course of conduct that endangered M.H. and
H.H.’s physical or emotional well-being. See TEX. FAM. CODE § 161.001(b)(1)(E).5
Parents also challenge the sufficiency of the evidence supporting the trial
court’s finding that termination was in the children’s best interests. See id.
§ 161.001(b)(2). “Best interest” is a term of art encompassing a broad facts-and-
circumstances evaluation and we accord the factfinder significant discretion in its
best-interest conclusion. In re L.J.H., 2021 WL 4260769, at *14. Although there is a
strong presumption that maintaining the parent-child relationship serves the child’s
best interest, TEX. FAM. CODE § 153.131, there is also a presumption that promptly
and permanently placing the child in a safe environment is in the child’s best interest,
id. § 263.307(a).
In Holley v. Adams, the supreme court identified a nonexclusive list of factors
potentially relevant to a best-interest determination, including: (1) the child’s
desires; (2) the child’s current and future emotional and physical needs; (3) current
and future emotional and physical dangers to the child; (4) the parental abilities of
those seeking custody; (5) the programs available to help those individuals promote
the child’s best interest; (6) those individuals’ plans for the child; (7) the home’s or
5
Because we conclude Mother’s termination was supported under subsection (E), we need not address
whether the evidence would also support termination under subsections (D) or (O). See D.L.G. v. Tex. Dep’t
of Fam. & Protective Serv’s, No. 03-20-00314-CV, 2020 WL 6789208, at *6 (Tex. App.—Austin Nov. 19,
2020, no pet.) (mem. op.); In re P.W., 579 S.W.3d 713, 728 (Tex. App.—Houston [14th Dist.] 2019, no
pet.).
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proposed placement’s stability; (8) the parent’s acts or omissions indicating that the
existing parent-child relationship is not a proper one; and (9) any excuse for the
parent’s acts or omissions. 544 S.W.2d 367, 371–72 (Tex. 1976). An absence of
evidence of some Holley factors does not preclude a finding that termination is in
the child’s best interest. In re C.H., 89 S.W.3d at 27. And the same evidence can be
relevant to both section 161.001(b)(1) termination grounds and the child’s best
interest.
Here, the only Holley factor weighing in Parents’ favor is H.H.’s strong
preference to return to them, paired with testimony that H.H. would benefit
emotionally from maintaining contact with them. But we must weigh this against the
clear and convincing evidence of the danger Father posed, given his pattern of sexual
abuse against M.H., and Mother’s unwillingness to protect either child from that
danger. See In re S.R.M., 2021 WL 4875538, at *5 (mother’s inclination not to
believe her child’s outcry and her continuing relationship with the sexually abusive
father supported a firm belief or conviction that returning the children to mother
would place the children in emotional and physical danger).
Further, there was testimony that the Department planned to give each child
permanency in a safe adoptive home, that there was a good chance both children
would be adopted, and that failing to terminate parental rights would deprive the
children of that opportunity. See In re C.J.B., 2019 WL 3940987, at *8 (“A child’s
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need for permanence is a paramount consideration in evaluating a child’s physical
and emotional needs.”). On this record, the trial court could have formed a firm belief
or conviction that termination was in the best interest of each child.
THE TRIAL COURT DID NOT DEMONSTRATE EXTREME BIAS
Parents next contend the trial court violated their due process rights by
abandoning its role as a neutral factfinder and making comments that illustrate
significant bias against them. We review complaints about the administration of a
trial for abuse of discretion. See Chambers v. Pruitt, 241 S.W.3d 679, 688 (Tex.
App.—Dallas 2007, no pet.). A trial court abuses its discretion when it acts in an
arbitrary or unreasonable manner without reference to guiding rules or principles.
Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010).
“All parties have a right to a fair and impartial trial before a neutral judge,”
Ellason v. Ellason, 162 S.W.3d 883, 887 (Tex. App.—Dallas 2005, no pet.), who
“should not act as an advocate for or adversary toward any party.” In re E.M., No.
02-18-00351-CV, 2019 WL 2635565, at *2 (Tex. App.—Fort Worth June 27, 2019,
orig. proceeding.) (mem. op.). “Allegations that a judge has put his or her thumb on
the scale should not be made simply because a party disagrees with the judge’s
rulings.” In re E.M., 2019 WL 2635565, at *3. Judicial rulings alone “almost never
constitute a valid basis for a bias or partiality motion,” and the opinions a judge
forms during a trial “do not call into question a judge’s bias or partiality unless they
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display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” In re L.J.H., 2021 WL 4260769, at *2 (cleaned up). “Critical,
disapproving, or even hostile judicial remarks” made to or about “counsel, the
parties, or their cases do not ordinarily support a bias or partiality challenge.” Id.Parents cite numerous instances during the trial where they believe the trial
court improperly assisted the Department in eliciting testimony and overcoming
their objections, demonstrating judicial bias. We have reviewed the record, and we
disagree. The trial court has broad discretion to conduct a trial, and it “may properly
intervene to maintain control in the courtroom, to expedite the trial, and to prevent
what it considers to be a waste of time.” Id. at *2–3. Indeed, the “trial judge has a
duty to direct ‘competent and material questions to a witness in order to clarify
testimony or to elicit testimony that has not otherwise been brought out,’” and “such
practice is ‘especially proper’ in a bench trial where the best interests of children are
at issue.” Id. at *3 (cleaned up). To the extent Parents complain about the trial court’s
comment that “there is no parent here even asking for the child, which is mind-
blowing in and of itself,” that reflects an opinion developed by the judge based on
the evidence at trial, and it also does not show prejudicial bias. See id. at *2.
The record reflects the trial court acted within its broad discretion to expedite
the bench trial by clarifying or explaining the basis of objections, by streamlining
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testimony from witnesses, and by otherwise efficiently developing the factual record
so it could make an informed decision in the children’s best interests. See id. at 2–3.
THE TRIAL COURT DID NOT ERR BY OVERRULING FATHER’S SPOUSAL-PRIVILEGE
OBJECTIONS
Father next contends the trial court erred by admitting testimony of certain
admissions he made to Mother, that Mother then conveyed to third parties, arguing
that they are subject to spousal privilege. We review the trial court’s evidentiary
rulings for abuse of discretion and will not reverse unless an erroneous ruling likely
led to an improper judgment. See TEX. R. APP. P. 47.1; Fleming v. Wilson, 610 S.W.3d
18, 21 (Tex. 2020).
In general, a person has a privilege to refuse to disclose and prevent another
from disclosing a confidential communication made by the person to his or her
spouse. TEX. R. EVID. 504. But “[i]n a proceeding regarding the abuse or neglect of
a child, evidence may not be excluded on the ground of privileged communication
except in the case of communications between an attorney and client.” TEX. FAM.
CODE § 261.202. Here, the trial unquestionably involved the abuse or neglect of a
child. See Almendarez v. State, 153 S.W.3d 727, 728 (Tex. App.—Dallas 2005, no
pet.). Thus, even if we assume spousal privilege would otherwise protect the
communications at issue despite their out-of-court disclosure to testifying third
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parties,6 they would not be subject to exclusion here. See TEX. FAM. CODE
§§ 261.001(1)(E) (definition of abuse), .202; see also In re L.E.S., 471 S.W.3d 915,
928 (Tex. App.—Texarkana 2015, no pet.) (holding spousal privilege did not apply
in termination proceedings involving allegations of abuse or neglect).
THE TRIAL COURT DID NOT ERR BY ADMITTING MS. ONYINANYA’S TESTIMONY
Mother next contends the trial court abused its discretion by admitting, over
Father’s hearsay objection, Ms. Onyinanya’s testimony relaying statements made by
M.H. and her aunt concerning the circumstances that prompted M.H.’s sexual assault
examination. As an initial matter, Mother did not preserve this issue for appeal by
objecting in the trial court, and she cannot rely on Father’s objection to preserve this
issue. See In re C.U.D., No. 14-21-00427-CV, 2022 WL 711104, at *4 (Tex. App.—
Houston [14th Dist.] Mar. 10, 2022, pet. denied) (mem. op.).
Regardless, considering the issue in the interests of justice, the evidence was
admissible under the medical-diagnosis exception to the hearsay rule based on Ms.
Onyinanya’s testimony. See TEX. R. EVID. 804(3). Ms. Onyinanya’s testified: “The
most important purpose of a SANE examination is to . . . determine that the child’s
body is healthy, as well as to reassure the child that their body is healthy. And it is
not, to do any labs, testing, and follow-up to treat that child medically.” Ms.
6
See Jones v. State, 859 S.W.2d 537, 540 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (“The
testimonial privilege ‘does not prohibit evidence of out-of-court statements made by the witness-spouse.’”
(quoting Gibbons v. State, 794 S.W.2d 887, 893 (Tex. App.—Tyler 1990, no pet.))).
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Onyinanya also stated that the reason she gathers statements like the ones at issue is
“for purposes of diagnosis and treatment,” noting that the information “will help us
determine, once again, what testing, what follow-up, and if there’s any immediate
needs on that day.” Even had Mother preserved the issue for review, we would not
conclude the trial court abused its discretion by admitting the testimony.
THE TRIAL COURT’S ERROR IN ADMITTING THE FORENSIC INTERVIEW VIDEO WAS
HARMLESS
Parents next contend the trial court reversibly erred by admitting hearsay
evidence of M.H.’s outcry. The only evidence parents specify as objectionable under
this issue is the video of M.H.’s forensic interview that was admitted over Father’s
hearsay objection.7
According to the family code:
In a suit affecting the parent-child relationship, a statement made
by a child 12 years of age or younger that describes alleged abuse
against the child, without regard to whether the statement is otherwise
inadmissible as hearsay, is admissible as evidence if, in a hearing
conducted outside the presence of the jury, the court finds that the time,
content, and circumstances of the statement provide sufficient
indications of the statement’s reliability and:
(1) the child testifies or is available to testify at the proceeding in
court or in any other manner provided by law; or
(2) the court determines that the use of the statement in lieu of the
child’s testimony is necessary to protect the welfare of the
child.
7
Because we conclude that the trial court’s error in admitting the video was harmless, we need not
decide whether Mother waived error by failing to object in the trial court.
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TEX. FAM. CODE § 104.006.
The trial court admitted the statement, at the Department’s urging, under
family code section 104.002, despite our holding that section 104.002 does not
permit admitting a child’s videotaped statement in lieu of trial testimony. See In re
S.P., 168 S.W.3d 197, 209–10 (Tex. App.—Dallas 2005, no pet.). The Department
appropriately concedes that, because M.H. was unavailable to testify at the trial, the
trial court erred by admitting the video of her forensic interview without first holding
a hearing and determining both that there were sufficient indications of reliability
and that admitting M.H.’s statement in lieu of her testimony was necessary to protect
her welfare. See id. But the Department contends the error was harmless, and we
agree.
As noted, we will not reverse based on erroneously admitted evidence unless
the error likely caused an improper judgment. See TEX. R. APP. P. 47.1; Fleming, 610
S.W.3d at 21. This usually requires a showing that the judgment turns on the
erroneously admitted evidence. In re D.A.C.-R., No. 05-21-00033-CV, 2022 WL
2303172, at *5 (Tex. App.—Dallas June 27, 2022, no pet. h.) (mem. op.). Generally,
error is harmless if the same or similar evidence is introduced without objection. See
In re J.N., No. 05-14-00558-CV, 2014 WL 4978656, at *3 (Tex. App.—Dallas Oct.
7, 2014, pet. denied).
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Here, Ms. Martinez provided a detailed affidavit describing the contents of
M.H.’s forensic interview, and that affidavit came into evidence without substantive
objection.8 Neither Mother nor Father points to any relevant statements made by
M.H. in her forensic interview that did not come into evidence elsewhere without
substantive objection. And although we have recognized that video evidence often
has a more powerful effect on jurors, see In re S.P., 168 S.W.3d at 210, this case was
not tried to a jury. Nothing in the record suggests the trial court’s judgment turned
on the distinction between the video and written evidence of M.H.’s outcry. Thus,
on this record, we conclude the trial court’s error in admitting the videotaped
forensic interview was harmless.
THE DEPARTMENT DID NOT HAVE THE BURDEN OF PROVING IT MADE REASONABLE
EFFORTS TO RETURN THE CHILDREN
Finally, Parents contend we should reverse the trial court’s judgment because
the Department did not make reasonable efforts to return the children to their care.
But Parents did not preserve this issue by presenting it first to the trial court and thus
it presents nothing for our review. See TEX. R. APP. P. 33.1; In re J.T., No. 02-14-
00378-CV, 2015 WL 2345511, at *2 (Tex. App.—Fort Worth May 14, 2015, no pet.)
(mem. op.).
8
The Department introduced its original petition, which included Ms. Martinez’s affidavit, into
evidence at the trial. Father objected only that admitting the petition into evidence was unnecessary because
it was part of the court’s files.
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In any event, the Department had no burden to produce any evidence on that
issue. See In re G.C., No. 11-12-00353-CV, 2013 WL 5520707, at *5 (Tex. App.—
Eastland Sept. 26, 2013, no pet.) (mem. op.); Jones v. Dallas Cnty. Child Welfare
Unit, 761 S.W.2d 103, 109 (Tex. App.—Dallas 1988, writ denied). Thus, the
judgment would not be subject to reversal even if there were no evidence suggesting
that the Department made reasonable efforts to return the children.
* * *
Having overruled each of the parents’ issues, we affirm the trial court’s
judgment.
/Cory L. Carlyle/
CORY L. CARLYLE
220017f.p05 JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.H. AND On Appeal from the 199th Judicial
H.H., CHILDREN District Court, Collin County, Texas
Trial Court Cause No. 199-30033-
No. 05-22-00017-CV V. 2020.
Opinion delivered by Justice Carlyle.
Justices Reichek and Nowell
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 5th day of August, 2022.
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