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In re R.H.W.

Court of Appeals of Texas, Fourteenth District

January 9, 2018

IN THE INTEREST OF R.H.W. III, M.H.W., K.H.W., AND T.H.W., CHILDREN

         On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 2015-03843

          Panel consists of Chief Justice Frost and Justices Busby and Wise.

          OPINION

          Ken Wise, Justice.

         In this 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.

         Factual Background

         The 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.

         Father, 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 residency.

         A trial 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.[1] The trial court appointed an amicus attorney to assist the court in protecting the best interest of the children.

         Mother 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.

         Mother 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 explanation.

         Later, 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.

         Mother 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 regularly.

         CPS 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.

         Mother 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 they wanted.

         Mother 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.

         On 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.

         The 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.

         Over 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.

         Saundre 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.

         Dickinson 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.

         Father 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 family.

         Father 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.

         Father 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.

         Father 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.

         At the 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 attorney.

         The 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)).

         Father's Issues

         Father 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.

         I. Issues One and Two: Sufficiency of the Evidence to Support the Predicate Findings for Involuntary Termination

         The 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 findings.

         A. Burden of Proof and Standards of Review

         In 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 505.

         "The 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).

         In a 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.

         In a 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.

         B. Legal Sufficiency of the Evidence to Support Termination of Father's Parental Rights under Family Code Section 161.001(E)

         In his 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.

         Only 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).

         "Under 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.

         Father 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 children.

         Father 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.

         In 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 hearsay.").

         But, 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 589.

         In 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.[2] 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.

         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.

         Applying 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.

         C. Factual Sufficiency of the Evidence to Support Termination of Father's Parental Rights under Section 161.001(E)

         In his 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 were made.

         To 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.

         For 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. ...


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