IN THE INTEREST OF R.H.W. III, M.H.W., K.H.W., AND T.H.W., CHILDREN
Appeal from the 310th District Court Harris County, Texas
Trial Court Cause No. 2015-03843
consists of Chief Justice Frost and Justices Busby and Wise.
accelerated appeal from a final decree of divorce terminating
appellant's parental rights to his four children,
appellant challenges the sufficiency of the evidence
supporting the predicate grounds for termination and the
finding that termination is in the children's best
interest. Appellant also contends that the trial court abused
its discretion by considering hearsay testimony and by
refusing to admit appellant's psychological evaluation
after appellee allegedly "opened the door." Lastly,
appellant contends that the trial court improperly awarded
child support to the children's amicus attorney after
terminating appellant's parental rights. We modify the
judgment and affirm as modified.
parties to the divorce will be referred to as
"Father" and "Mother" for purposes of
this opinion. Father and Mother were married in 2004, and
they had four children during the marriage: R.H.W. III
(R.H.W.), M.H.W., K.H.W., and T.H.W. Father and Mother
stopped living together in July 2014, allegedly when all four
children made outcries to Mother that they had been sexually
abused by Father. Mother filed for divorce in January 2015.
then a doctor pursuing a medical residency, was arrested in
January 2016 on four felony sexual-abuse charges.
Contemporaneously, the criminal district court in which the
cases were pending issued a "no contact" order
prohibiting Father from any contact with the children.
Father's medical license was suspended, as was his
was held before the court over three days in December 2016.
At the time, Father had not yet gone to trial on the criminal
offenses. The trial court appointed an amicus
attorney to assist the court in protecting the best interest
of the children.
testified that she was seeking a divorce from Father on the
grounds of adultery and cruelty towards her and the children,
and that she was also requesting that Father's parental
rights be terminated. Mother explained that she decided to
seek a divorce in 2014, when she found out that Father
sexually abused the children.
first became suspicious in July 2014, when T.H.W., then about
three years old, told Mother that Father touched her
"right here" while pointing to her vaginal area.
Mother confronted Father, but he denied doing anything like
that and told her that he only touched the children to wash
them during bath time. Mother initially believed Father's
when the children began to appear afraid of Father and
"things were just not feeling right, " Mother asked
Father what was going on. According to Mother, Father
"broke down" and admitted that he would watch
pornography and then get the children out of their rooms at
night and have them touch one another. Father also would
touch them. Father said that he would get erections when
their daughter sat on his lap. Father also told Mother that
when he did not get what he was looking for from the
children, he would come to Mother "as a last
resort." Father wrote letters to each of the children in
which he apologized to them for letting them down as a
father. Father acknowledged "inappropriate
touching" and described it as "wrong, "
"unacceptable, " and "illegal." Father
also apologized for hurting, bullying, and intimidating the
children. In one of the letters, Father stated, "What I
have done to you is unacceptable and downright evil." In
another, Father stated, "You and your brother and
sisters could be taken away, with me being sent to
jail." Mother testified that the letters confirmed to
her that Father sexually abused the children.
testified that she contacted Child Protective Services (CPS)
about the abuse and an investigator came to the home to
interview her. Additionally, each of the children had
forensic interviews at the Children's Assessment Center.
After the interviews, Mother stated that she was advised to
take the children to a therapist. Mother testified that,
since that time, the children have been seeing a therapist
also referred the cases to the district attorney's
office, and criminal charges were subsequently brought
against Father. The criminal complaints in evidence alleged
the following felony offenses against Father: (1)
super-aggravated sexual assault of a child under six years of
age for intentionally and knowingly causing the penetration
of the anus of M.H.W. with Father's finger; (2) indecency
with a child by touching the anus of T.H.W. with the intent
to arouse and gratify the sexual desire of Father; (3)
indecency with a child by touching the genitals of K.H.W.
with the intent to arouse and gratify the sexual desire of
Father; and (4) continuous sexual abuse of a child by
committing acts of indecency by contact against R.H.W. in
2011 and 2013.
testified that the children were having behavioral problems
which she believed resulted from Father's abuse. She also
explained that when Father's arrest was publicized in the
news, she received calls and messages from people asking
about it. Because their last name was uncommon and an
internet search of it would reveal the charges against
Father, Mother wanted the children to be given new names.
Mother stated that the children already had chosen the names
stated that she had not allowed Father to have unsupervised
visits with the children since he admitted what he had done.
Mother believed that Father's inappropriate touching, as
described in his letters, placed the children in a dangerous
environment. Mother testified that the children were
traumatized and scarred by the sexual molestation, and she
stated that it would devastate them to remain connected to
the man who molested them. Mother believed that Father had
endangered the children's physical and emotional
well-being by sexually molesting them. In Mother's
opinion, it would be in the children's best interest for
Father's parental rights to be terminated.
cross-examination, Mother admitted that she never saw Father
sexually abuse any of the children, and she did not suspect
abuse until the children made outcries to her in 2014.
According to Mother, after Father admitted abusing the
children, he repeatedly apologized to her. Mother told him to
apologize to the children rather than to her and to put it in
writing, and that is when Father brought her the letters he
wrote to the children. Mother denied telling Father to write
the letters so that she could use them in the divorce
proceedings for settlement, and denied telling Father the
details to write. Mother acknowledged, however, that she did
not give the letters to the children to read, nor did she
read them to the children.
children's therapist, Carol Sepulveda, also testified.
Father objected to Sepulveda testifying as an expert, and the
trial court sustained the objection because Mother had not
designated Sepulveda as an expert witness. Thus, Sepulveda
was permitted to testify as a fact witness only.
Father's objection, Sepulveda stated that she was seeing
the children "because they had been sexually
abused." Sepulveda testified that R.H.W., the oldest
child, told her that Father started sexually molesting him at
the age of three, and that Father also had the children
molest one another in his presence. R.H.W. said it began when
Father was bathing him and would start to fondle him. R.H.W.
stated that he felt embarrassed about what had happened to
him and was ashamed that people in the community found out
about it when it was publicized. The younger children also
indicated to Sepulveda that Father would have them touch one
another, and their communication with her gave her the
impression that the touching would happen in the bathroom
when they were bathed. The children also described Father
making R.H.W. penetrate another child.
Dickinson, a licensed marriage and family therapist, was
called to testify by the children's amicus attorney,
Bobbie Young. Dickenson was permitted to testify only as a
fact witness, however, because she had not been designated as
an expert witness.
first met Mother and Father in 2006, and she saw them
individually and as a couple through 2012. Since 2012, she
had seen only Mother. Dickinson testified that in their first
session with her, Father said, "I have a sexual
compulsive problem." When gathering background
information from Father, Dickinson said that Father told her
that his mother was not there for him much, that she saw men,
and that she had problems with drugs. When Dickinson asked
Father if his mother ever left him with any of the men, he
just shrugged his shoulders and did not answer. In the
sessions, the couple would discuss Father's multiple
affairs. Dickinson testified that in 2012, Father agreed to
go to an inpatient sexual rehab facility. No evidence was
presented that Father did so.
testified that he and Mother had R.H.W. about a year after
they were married. Father was working on his Ph.D. at the
time. He and Mother then had another son and two daughters.
Mother and Father supported the family with work income and
Father's student loans. Once Father went to medical
school, Mother became the primary caretaker for the children
and, according to Father, was an "excellent mom."
Mother started her own business and took care of the children
and the home. Once Father began his medical residency, he
worked long hours and had little time to spend with the
testified that he made time to spend with the family when he
could. He always cut the boys' hair, and sometimes he
would take the children for ice cream or they would go to a
park or the zoo. He also participated in the children's
educational and extracurricular activities. As Father's
medical residency progressed, he and Mother grew more apart
and did not talk to each other much except about the
children. But, Father stated that his relationship with the
children remained good. By 2014, the marriage became strained
to the brink of divorce because of his infidelity.
Nevertheless, Father maintained that the children continued
to do well, although he acknowledged some of them had
occasional behavioral problems.
testified that he loved his children dearly and had never
done anything to hurt them. He stated that he was able to
care for his children by working, providing for them
economically, and being there for them emotionally. Father
did not want to give up his children and denied ever
physically hurting them. Father requested a joint managing
conservatorship with Mother and a standard visitation order.
Father also submitted a proposed parenting plan. Although
Father admitted that he was not currently
"hireable" in any of his fields of study due to the
public nature of the accusations against him and the
suspension of his medical license, he currently was working
odd jobs and intended to find a way to continue meeting his
child support obligations.
testified that he believed it was in the children's best
interest that he remain their father. He also thought it was
important that the children keep his name, because he had
worked hard to make that name mean something and he was proud
of it. Father denied abusing any of the children. Although he
did not believe there was any hope of reconciling with
Mother, Father testified that he "would do whatever it
takes" to be able to parent his children and take care
of them. When asked on cross-examination whether he believed
that his children had been sexually molested, Father stated
that he believed that R.H.W. did touch the girls, but he
acknowledged that he did not report it.
conclusion of the trial, the court orally granted the parties
a divorce on the grounds that Father had committed adultery
and acts of cruelty towards Mother and the children. The
trial court also divided the parties' marital estate,
terminated Father's parental rights to all four children,
granted name changes for Mother and each of the children, and
ordered Father to pay Mother's attorney's fees.
Additionally, the trial court approved Mother's and
Father's stipulation on the record that each would pay
one-half of the attorney's fees charged by the amicus
trial judge signed a final decree of divorce consistent with
the judge's oral rendition on February 16, 2017. This
accelerated appeal followed. See Act of May 5, 2011,
82nd Leg., R.S., ch. 75, § 3, 2011 Tex. Sess. Law Serv.
348, 349 (effective September 1, 2011) (amended 2017)
(current version at Tex. Fam. Code § 109.002(a-1)).
presents six issues for review. In issues one and two, Father
contends that the evidence is legally and factually
insufficient to establish by clear and convincing evidence
the predicate findings supporting involuntary termination of
his parent-child relationship with each of the children. In
issue three, Father contends that terminating his parental
rights is not in the best interest of the children. In issue
four, Father contends that the trial court abused its
discretion by improperly considering hearsay and opinion
testimony from Sepulveda. In issue five, Father contends that
the trial court abused its discretion by refusing to admit
into evidence a psychological evaluation prepared at
Father's request by Dr. Stephen Thorne after Mother's
counsel purportedly "opened the door" to this
testimonial evidence. Finally, in issue six, Father contends
that the trial court improperly awarded the amicus
attorney's fees to be paid by Father as additional child
support after terminating his parental rights. We address
each issue in turn.
Issues One and Two: Sufficiency of the Evidence to Support
the Predicate Findings for Involuntary Termination
trial court found by clear and convincing evidence that
Father (1) knowingly placed or knowingly allowed the children
to remain in conditions or surroundings which endanger the
physical or emotional well-being of the children; and (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 Tex.
Fam. Code § 161.001(b)(1)(D)-(E). Father challenges the
legal and factual sufficiency of the evidence to support both
Burden of Proof and Standards of Review
proceedings to terminate the parent-child relationship under
section 161.001 of the Family Code, the petitioner must prove
by clear and convincing evidence that the parent has engaged
in at least one statutory ground for termination under
subdivision (1) of the statute, and also must prove that
termination is in the child's best interest. Tex. Fam
Code § 161.001(1), (2); In re A.B., 437 S.W.3d
498, 504-05 (Tex. 2014). "Clear and convincing
evidence" is that "degree of proof that will
produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be
established." Tex. Fam. Code § 101.007; In re
J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Termination may
not be based solely on the best interest of the child as
determined by the trier of fact. A.B., 437 S.W.3d at
natural right existing between parents and their children is
of constitutional dimensions." Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Parents have a fundamental
right to make decisions concerning "the care, custody,
and control of their children." Troxel v.
Granville, 530 U.S. 57, 65 (2000). Because the
termination of parental rights implicates these fundamental
interests, a higher standard of proof, i.e., clear and
convincing evidence, is required. A.B., 437 S.W.3d
at 502. Nevertheless, although parental rights are of
constitutional magnitude, they are not absolute, and the
child's emotional and physical interests must not be
sacrificed merely to preserve the parent's rights. In
re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
legal-sufficiency review, we consider all the evidence in the
light most favorable to the findings to determine whether the
fact finder reasonably could have formed a firm belief or
conviction that the grounds for termination were proven.
See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)
(per curiam). We assume the fact finder resolved disputed
facts in favor of the finding, if a reasonable fact finder
could do so, and disregard evidence that the fact finder
reasonably could have disbelieved or found to have been
incredible. See id. We defer to the fact
finder's determinations of witness credibility, so long
as those determinations are reasonable. Id.
factual-sufficiency review, we give due consideration to
evidence the fact finder reasonably could have found to be
clear and convincing. In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002). We must determine "whether the evidence
is such that a fact finder could reasonably form a firm
belief or conviction about the truth of the . . .
allegations." Id. (quoting C.H., 89
S.W.3d at 25). "If, in light of the entire record, the
disputed evidence that a reasonable fact finder could not
have credited in favor of the finding is so significant that
a fact finder could not reasonably have formed a firm belief
or conviction, then the evidence is factually
insufficient." Id. We are therefore required to
engage in an "exacting review of the entire record when
a parent challenges a termination order for insufficient
evidence." A.B., 437 S.W.3d at 505. The fact
finder is the sole arbiter of a witness's demeanor and
credibility. Id. at 503.
Legal Sufficiency of the Evidence to Support Termination of
Father's Parental Rights under Family Code Section
first issue, Father contends that the evidence does no more
than support an inference that Father was suspected
of sexually abusing the children. Consequently, Father
maintains, the evidence is legally insufficient to support
either of the trial court's predicate findings.
one predicate finding under section 161.001 is necessary to
support a judgment of termination when there is also a
finding that termination is in the child's best interest.
In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Accordingly, we will address the trial court's predicate
findings under section 161.001(E).
subsection (E), the relevant inquiry is whether evidence
exists that the endangerment of the child's physical
well-being was the direct result of the parent's conduct,
including acts, omissions, or failures to act." In
re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort
Worth 2003, no pet.); see also In re S.M.L., 171
S.W.3d 472, 477 (Tex. App.-Houston [14th Dist.] 2005, no
pet.). In this context, endanger means "to expose to
loss or injury; to jeopardize." In re T.N., 180
S.W.3d 376, 383
(Tex. App.-Amarillo 2005, no pet.) (quoting In re
M.C., 917 S.W.2d 268, 269 (Tex. 1996)). A child is
endangered when the environment creates a potential for
danger that the parent is aware of but disregards.
S.M.L., 171 S.W.3d at 477.
first contends that Mother failed to meet her burden to show
by clear and convincing evidence that Father sexually abused
the children because neither Mother nor the amicus attorney
presented any direct evidence of sexual or physical child
abuse committed by Father. Specifically, Father argues that
the children did not testify, no medical evidence of physical
or sexual abuse was presented, and no testimony, reports, or
other evidence was offered or admitted from the Department of
Protective and Regulatory Services of abuse against the
is incorrect in his assessment of the record evidence.
Father's letters to the children, which he does not deny
writing, were direct evidence of Father's admissions that
he engaged in "illegal" and "wrong"
actions, including inappropriately touching, violating,
hurting, bullying, and intimidating each of the children.
Although Father testified at one point that by
"inappropriate touching" he meant spanking, the
trial court was free to disbelieve Father's testimony.
See A.B., 437 S.W.3d at 503.
addition, the criminal complaints were admitted into evidence
without objection. Each complaint included a probable cause
affidavit by a Harris County Sheriff's Office
investigator, in which the investigator explained that he
reviewed the forensic interview of each child, and recounted
the details of each interview in specific and graphic detail.
The investigator also averred that he interviewed Mother,
whom he found to be "credible and reliable."
Unobjected-to hearsay is, as a matter of law, probative
evidence. Tex. Commerce Bank, Nat'l Ass'n v.
New, 3 S.W.3d 515, 516 (Tex. 1999); see Tex. R. Evid.
802 ("Inadmissible hearsay admitted without objection
may not be denied probative value merely because it is
even if the record did not contain direct evidence, as Father
alleges, direct evidence is not necessarily required to
support the predicate finding under section 161.001(E).
"Circumstantial evidence may be sufficient to support
termination." In re R.F., 115 S.W.3d 804, 810
(Tex. App.-Dallas 2003, no pet.). Circumstantial evidence is
"simply indirect evidence that creates an inference to
establish a central fact. In re Lipsky, 460 S.W.3d
579, 588-89 (Tex. 2015). "All evidentiary standards,
including clear and convincing evidence, recognize the
relevance of circumstantial evidence." Id. at
addition to the direct evidence presented, Mother testified
that the children told her that Father sexually abused them,
and Mother described the alleged abuse. Although Father
objected to this testimony as hearsay, Mother's counsel
asserted the "outcry" exception in Family Code
section 104.006. Section 104.006 provides that in a suit
affecting the parent-child relationship, a statement made by
a child twelve 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 the trial court finds that the statements are
reliable and meet other criteria. See Tex. Fam. Code
§ 104.006. The trial court ruled Mother's
testimony admissible, and Father does not challenge this
ruling on appeal. Mother also testified concerning the
traumatic effects she believed the abuse had on the children,
and her concerns about their future if Father's parental
rights were not terminated. Additionally, she described
contacting CPS about the abuse and testified that each of the
children received forensic interviews which led to criminal
charges being brought against Father.
next argues that the evidence is legally insufficient because
Mother's original petition for divorce requested that
parental rights be shared, and she made no allegation of
sexual abuse until shortly before the first trial setting in
August 2015. On cross-examination, Mother acknowledged that
when she originally filed for divorce in January 2015, her
petition requested that Father "have visitation one
weekend per month due to his demanding and unpredictable work
schedule, " and she made no allegations of cruelty or
sexual abuse. She also admitted that she did not make any
allegations of sexual abuse until August 2015, when she filed
her first amended petition for divorce. Mother explained,
however, that when she filed her original petition, she filed
a form document pro se, using the paperwork she could find
because she was "trying to get a divorce and get as far
away from [Father] as possible." Mother also testified
that she initially believed Father's denials of any
sexual abuse against T.H.W., and explained that she delayed
making a report even after Father admitted sexually abusing
the children because he told her no one would believe her,
and she was afraid that her children could be taken from her.
The trial court reasonably could have accepted Mother's
explanations. See J.P.B., 180 S.W.3d at 573.
the appropriate standard of review, we conclude that the
record contains legally sufficient evidence to support the
trial court's finding that Father engaged in conduct or
knowingly placed the children with persons who engaged in
conduct which endangered the physical or emotional well-being
of the children. See Tex. Fam. Code §
161.001(b)(1)(E). We overrule Father's first issue.
Factual Sufficiency of the Evidence to Support Termination of
Father's Parental Rights under Section
second issue, Father contends that the evidence is factually
insufficient to support the trial court's findings that
Father's parental rights should be terminated. Father
points to his own testimony in which he denied ever abusing
his children. Father also testified that his letters to the
children were written, not for the children, but for Mother
and their "spiritual advisor" as a "last ditch
desperation act to be able to see and spend time with"
his children. According to Father, Mother and the spiritual
advisor threatened to go to the police, tell everyone at his
workplace, have the children taken away, and put him in jail
if he did not write the letters. Father also testified that
since July 2014, the children have admitted to him on more
than one occasion that Father did not abuse them. According
to Father, Mother was present at times when these admissions
ensure that we appropriately respect the fact finder's
function, we are required to give due deference to the trial
court, who, "having full opportunity to observe witness
testimony first-hand, is the sole arbiter when assessing the
credibility and demeanor of the witnesses."
A.B., 437 S.W.3d at 503. Not only did the trial
court have the opportunity to observe Father's testimony
directly, but Father, by his own admission, was capable of
being untruthful or manipulative when it served his purposes.
example, Father wrote a letter to Mother detailing his
multiple affairs, which was admitted into evidence. In the
letter, Father repeatedly discussed how he would manipulate
and lie to the women to get sex or other things he wanted
from them. At trial, Father admitted that he manipulated the
women for his own benefit. Further, on cross-examination,
Father stated that he wrote the letters to the children so
that he would be allowed to speak with them, explaining,
"It was a fee for service. ...