in the Interest of M.H. and H.H., Children

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.

–2–
 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.).
–10–
§ 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.

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 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.))).
–21–
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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