









Reversed and Remanded and Majority and Dissenting Opinions filed
February 28, 2006








 
Reversed and Remanded
and Majority and Dissenting
Opinions filed February 28, 2006.
 
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-05-00397-CV
____________
 
IN THE INTEREST OF
E.A.K.
 
 

 
On Appeal from the 310th
District Court
Harris County, Texas
Trial Court Cause No. 2002-58414
 

 
M A J O R I T Y   O P I N I O N
Mustofa K. Khandokar appeals from the
trial court=s order terminating his rights as a parent
of E.A.K., a minor.  A jury found that at
least one of the grounds alleged for termination was proven by clear and
convincing evidence.  The jury further
found that termination of Mustofa=s parental rights
would be in E.A.K.=s best interest.  The trial court entered a decree of
termination in accordance with the jury=s findings.  On appeal, Mustofa contends that (1) the
trial court erred in admitting certain documents over hearsay objections, (2)
the trial court erred in admitting the hearsay statements of a child, and (3)
the evidence was insufficient to support the jury=s finding on each
ground for termination and the finding that termination would be in E.A.K.=s best
interest.  We reverse and remand.




I. 
Background
E.A.K was born in Arlington, Texas, on
June 12, 2002, to Mustofa and Stacey Khandokar. 
The couple had been married in 1994 before divorcing in 2000 and
subsequently reconciling.  E.A.K. was
born with craniosynotosis, a birth defect involving premature closing of the
suture lines in the skull.  It was
corrected by surgery.  At the time of
E.A.K.=s birth, J.J.,
Stacey=s daughter by
another father, was also staying with them, although a previous court order had
given permanent managing conservatorship of J.J. to Stacey=s parents.  J.J. turned nine years old shortly after
E.A.K. was born.
While J.J. was living with Mustofa and
Stacey, she allegedly told Stacey and a neighbor, Karri LaChance, that Mustofa
had touched her inappropriately.  She
repeated her accusations to a Child Protective Services (ACPS@) caseworker.[1]  Stacey and LaChance also made formal written
statements to the Arlington Police Department.[2]  A warrant issued for Mustofa=s arrest on
October 25, 2002.  After an
investigation, the CPS caseworker concluded that there was reason to believe
Mustofa had sexually molested J.J. 
Mustofa was released on bond on the condition that he have no contact
with J.J. or any unsupervised contact with any other minor.  Ultimately, the CPS investigation was closed
due to Stacey=s refusal to cooperate and the fact that
she was apparently protecting J.J. from Mustofa by not allowing him to have
contact with her.  The criminal charges
were dismissed on September 21, 2004, after Stacey relocated to Houston with
the children.




In Houston, J.J. made an allegation of
sexual abuse against the father of one of her friends.  The Houston Police Department and CPS
investigated and ruled out sexual abuse; however, CPS concluded that there was
reason to believe that Stacey had provided inadequate supervision of J.J.  The investigation was closed when Stacey
returned J.J. to her (J.J.=s)
grandmother.  Subsequently, Stacey had an
episode during which the police were called, and E.A.K. was taken into custody
by the Department of Family and Protective Services (ADFPS@).[3]  According to the DFPS transfer summary,
Stacey was found wandering around outside a service station with E.A.K., and
police took her to her parent=s house before
ultimately taking her for psychiatric evaluation.[4]  Stacey testified that the police found her at
her father=s house because she had left a suitcase at
a service station.
DFPS filed a Petition in Intervention
seeking to terminate the parental rights of both Mustofa and Stacey in regards
to E.A.K.[5]  At trial, DFPS emphasized J.J.=s sexual assault
allegations against Mustofa; however, DFPS did not introduce the allegations
through J.J.=s live or videotaped testimony or even
through the live testimony of anyone to whom J.J. made an outcry
statement.  Instead, DFPS offered several
documents purportedly memorializing J.J.=s outcry
statements and contained in the DFPS case file, which was admitted over hearsay
objections as petitioner=s exhibit 1.  The only live testimony regarding J.J.=s outcry came from
Stacey, who testified that most of the allegations made against Mustofa were
false.  Mustofa denied the allegations in
his own testimony.[6]




The portion of the jury charge concerning
Mustofa queried whether he (1) knowingly placed or knowingly allowed E.A.K. to
remain in conditions or surroundings which endanger E.A.K.=s physical or
emotional well being, (2) engaged in conduct or knowingly placed E.A.K. with
persons who engaged in conduct which endangers E.A.K.=s physical or
emotional well being, (3) failed to support E.A.K. in accordance with his
ability during a period of one year ending within six months of the date of the
filing of the petition, and (4) failed to comply with the provisions of a court
order that specifically established the actions necessary for him to obtain the
return of E.A.K.  The jury found that at
least one of the grounds was proven by clear and convincing evidence and that
termination of Mustofa=s parental rights would be in E.A.K.=s best
interest.  The trial court entered a
decree of termination in accordance with these findings and also terminating
Stacey=s rights pursuant
to separate findings of the jury.  Stacey
did not appeal the termination of her rights.
II. 
The DFPS Case File




Prior to trial, DFPS indicated that it
planned to introduce into evidence the entirety of its 1,176-page case file as
one exhibit.  In response, Mustofa filed
written objections to at least sixty of the documents contained in the
file.  Most of these documents were
objected to on hearsay grounds.  In a
pre-trial hearing two days before trial, DFPS reiterated that it intended to
introduce the case file as one exhibit, and Mustofa reminded the court that he
had filed written objections.  The trial
court overruled the objections Aat this time@ but also refused
to admit the case file because nothing was being offered for admission at that
hearing.  On the morning of the first day
of trial, the court held another hearing before the jury was seated.  At that time, DFPS offered its case file as
petitioner=s exhibit 1.  In response to Mustofa=s hearsay
objections, DFPS argued that the case file was admissible under the business
records exception to the hearsay rule.  See
Tex. R. Evid. 803(6).  A DFPS employee, Jennifer Lilly, filed an
affidavit and testified in support of admitting the documents.  See id. 902(10) (providing
requirements for business records affidavits). 
She stated that she is the custodian of the records for DFPS, that the
records were kept by DFPS in the regular course of business, that it was in the
regular course of business for an employee or representative of DFPS with
knowledge of the information recorded to make the record or transmit the
information, and that the records were made at or near the relevant time
period.  She further testified that DFPS
was required by statute to gather the information contained in the file, which
may have been a reference to the public records exception to the hearsay rule,
although this exception was not specifically identified in the trial court as a
basis for admission.  See id.
803(8) (providing requirements for public records exception to hearsay rule).
At the hearing, Mustofa specifically identified
several documents in the file as containing hearsay and not being admissible
under the business records exception because they were not generated by
DFPS.  The objected-to documents included
the following: (1) a psychological assessment of Mustofa; (2) a home study
prepared by a DFPS contractor of a home as a potential foster placement for
E.A.K.; (3) a written statement that Stacey gave to the Arlington police
relating the sexual assault allegations made by J.J. against Mustofa; (4) a
written statement that the neighbor, LaChance, gave to police relating J.J.=s allegations; (5)
a child abuse protocol made by a physician assistant at the ABC Center of the
University of Texas Medical Branch at Galveston; and (6) an Arlington Police
Department arrest warrant.  The trial
court admitted all of the documents into evidence except the psychological
assessment, which it expressly excluded.




In a separate pretrial hearing, DFPS
indicated that it intended to introduce outcry statements made by J.J. (and
contained in the case file) without calling J.J. as a witness, pursuant to
section 104.006 of the Texas Family Code. 
Tex. Fam. Code Ann. ' 104.006 (Vernon
2002).  These statements included ones
made to Stacey, to LaChance, and to a CPS caseworker.  The trial court ruled that it would allow the
statements made to Stacey and the caseworker but would not allow the statements
made to LaChance unless LaChance was present and available to testify.  At trial, the statements of all three women
were admitted into evidence even though LaChance apparently was not present.
III. 
Analysis
On appeal, Mustofa contends that (1) the
trial court erred in admitting certain documents contained in petitioner=s exhibit 1 over
his hearsay objections; (2) the trial court erred in admitting J.J.=s outcry statements
to Stacey, LaChance, and the caseworker; and (3) the evidence was insufficient
to support the jury=s finding on each ground for termination
and the finding that termination would be in E.A.K.=s best
interest.  We consider each contention in
turn.
A. 
Hearsay




In his first issue, Mustofa contends that
the trial court erred in admitting certain documents in exhibit 1 over his
hearsay objections.[7]  On appeal, DFPS argues that admission of the
documents was proper under both the business records exception and the public
records exception to the hearsay rule.  See
Tex. R. Evid. 803(6), (8).
In reviewing a trial court=s decision to
admit evidence, we utilize an abuse of discretion standard.  See In re J.F.C., 96 S.W.3d 256, 285
(Tex. 2002); Nat=l Liability and
Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000).  A trial court abuses its discretion when it
rules without regard for any guiding rules or principles.  Owens‑Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998). 
We must uphold a trial court=s evidentiary
ruling if there is any legitimate basis for the ruling.  Id. 
A>Hearsay= is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.@ 
Tex. R. Evid. 801(d). 
The proponent of hearsay has the burden of showing that the testimony
fits within an exception to the general rule prohibiting the admission of
hearsay evidence.  Volkswagen of Am.,
Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004).
1. 
The Business Records Exception
Rule 803(6) of the Texas Rules of Evidence, the business
records exception, provides that evidence meeting the following criteria should
not be excluded under the hearsay rule:
A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity,
and if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by the testimony
of the custodian or other qualified witness, or by affidavit that complies with
Rule 902(10), unless the source of information or the method or circumstances
of preparation indicate lack of trustworthiness.  >Business= as used in this paragraph includes
any and every kind of regular organized activity whether conducted for profit
or not.




Thus, the foundation for the business records
exception has four requirements:  (1) the
records were made and kept in the course of a regularly conducted business
activity, (2) it was the regular practice of the business activity to make the
records, (3) the records were made at or near the time of the event that they
record, and (4) the records were made by a person with knowledge who was acting
in the regular course of business.  Powell
v. Vavro, McDonald, and Assocs., L.L.C., 136 S.W.3d 762, 765 (Tex. App.CDallas 2004, no
pet.); Daimler‑Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707,
716 (Tex. App.CAustin 2000, pet. dism=d w.o.j.).
At trial, DFPS argued that its entire case
file was admissible under this exception and supported that assertion with
Jennifer Lilly=s affidavit and live testimony.  Mustofa argued primarily that certain
documents in the case file were not admissible under the business records
exception because those documents were not generated by DFPS.  We will address each document in turn:  (1) the psychological assessment; (2) the
home study; (3) Stacey=s written statement; (4) LaChance=s written
statement; (5) the child abuse protocol; and (6) the arrest warrant.
First, regarding the psychological
assessment, the trial court excluded the document from exhibit 1 in response to
Mustofa=s objection.  Consequently, his argument on appeal is moot
in relation to that document.  See In
re G.A.T., 16 S.W.3d 818, 828 (Tex. App.CHouston [14th
Dist.] 2000, pet. denied) (stating that to preserve error on objection, party
must suffer adverse ruling).[8]




The home study Mustofa objected to was of
a potential foster placement for E.A.K. 
As discussed in detail above, Lilly, a DFPS employee, testified that
based on her personal knowledge, it was in the regular course of business for
an employee or representative of DFPS with knowledge of the information
recorded to make the records or transmit the information contained in the case
file.  The home study reflects that it
was prepared by Etho T. Pugh, who describes himself as a AContract Social
Worker.@  The document also contains a signature block
for Virginia Lamb, who is listed as a ATDPRS Supervisor.@[9]  Furthermore, the document indicates that the
home study was conducted pursuant to a referral to TDPRS.  Thus, it appears that the document was
prepared by a contractor on behalf of, for the use of, and representing TDPRS.  Rule 803(6) does not require that the witness
laying the predicate for admission of a document be the creator of the document
or even an employee of the same company as the creator.  See Tex.
R. Evid. 803(6); Houston Shell & Concrete Co. v. Kingsley
Constructors, Inc., 987 S.W.2d 184, 186 (Tex. App.CHouston [14th
Dist.] 1999, no pet.); Montoya v. State, 832 S.W.2d 138, 141  (Tex. App.CFort Worth 1992,
no pet.).  The witness does not even have
to have personal knowledge of the information recorded in the document but need
only have knowledge of how the records were prepared.  In re K.C.P., 142 S.W.3d 574, 578
(Tex. App.CTexarkana 2004, no pet.); In re J.G.,
112 S.W.3d 256, 262 (Tex. App.CCorpus Christi
2003, no pet.); Montoya, 832 S.W.2d at 141.  As stated, Lilly testified that it was in the
regular course of business for an employee or representative of DFPS
with knowledge of the information to make the record or transmit the
information contained in the case file. 
Considering Lilly=s testimony and the face of the document,
the record supports the conclusion that the home study was created by a
representative of DFPS under the supervision of a DFPS employee.  Thus, Mustofa=s objection that
the business records exception did not apply to the home study because it was
not prepared by DFPS is without merit. 
The trial court did not abuse its discretion in admitting the home study
under the business records exception.[10]




We next consider the handwritten
statements that Stacey and LaChance gave to the Arlington police relating the
sexual assault allegations made by J.J. against Mustofa.  These statements contained hearsay in that
they (1) were the written statements of Stacey and LaChance instead of their
live testimony at trial, and (2) related statements that J.J. allegedly made to
the two women.[11]  See Tex.
R. Evid. 801(d); C & H Nationwide, Inc. v. Thompson, 810
S.W.2d 259, 268 (Tex. App.CHouston [1st
Dist.] 1991) (finding that out-of-court written statement was hearsay), aff=d in part, rev=d in part on other
grounds, 903 S.W.2d 315 (Tex. 1994). 
The statements were clearly not created by DFPS employees or
representatives in the usual course of business.[12]




It appears, from DFPS=s arguments at trial and on appeal,
that Lilly=s testimony regarding the documents
may have been intended to refer to the gathering of the case file itself as
opposed to the actual generation of each document in the file.  Indeed, it has been held that the compilation
or keeping of documents created by others may support admission under Rule
803(6), if done in the regular course of business.  See, e.g., Duncan Dev., Inc.
v. Haney, 634 S.W.2d 811, 813-14 (Tex. 1982).  However, in
order for compilation to support admission, there must be a showing that the
authenticating witness or another employee of the company compiling the records
knew of the events described in the compiled records such that they had
personal knowledge of the accuracy of the statements in the documents.  See id. (holding that invoices of
subcontractors were properly authenticated by employee of general contractor
because employees of general contractor had checked to ensure that statements
on invoices were accurate); see also Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131,
139-140 (Tex. 2004) (AWhile a compilation of such complaints by a manufacturer
might constitute a business record that such claims were (or were not)
received, they could not be a business record that such claims are true unless
the employee making the record had personal knowledge of each.@ (footnote omitted)); Houston Shell
& Concrete Co., 987 S.W.2d at 186 (holding that test core results from third party were
admissible as business records because authenticating witness testified that he
personally watched the samples being taken and noted the results and that
engineers in the field rely on the testing system used).  Here, Lilly=s testimony did not demonstrate that
she, or anyone else employed by DFPS, had personal knowledge of the events
described in Stacey=s and LaChance=s statements such that they could
verify the accuracy of the statements. 
DFPS did not offer any other evidence in support of admission of these
statements under the business records exception. 
Consequently,
DFPS failed to lay a proper predicate for admission of this evidence under the
business records exception.




Next, we turn to the child abuse protocol
prepared by a physician assistant (AP.A.@) at the ABC
Center.  This document contains the P.A.=s description of
an interview and physical examination of J.J., including the following
hearsay:  (1) J.J.=s statements to
the P.A., (2) the P.A.=s relating of J.J.=s statements, (3)
and the P.A.=s recounting of her own observations
during the examination.[13]  Again, DFPS argued that the document was
admissible under the business records exception.  The face of the document indicates that the
ABC Center is a department of the University of Texas Medical Branch at
Galveston.  There is nothing in the
record indicating that there was a representative connection between the ABC Center
and DFPS or that the P.A. herself was an employee or representative of DFPS.[14]  Accordingly, Lilly=s generalized
statement that the records were prepared by employees or representatives of
DFPS is unavailing in regard to the protocol. 
Further, Lilly did not testify that she or any other employee of DFPS had personal knowledge of the events
described in the protocol such that they could verify the accuracy of the
statements made therein.  See Duncan Dev.,
634 S.W.2d at 814;  Houston Shell & Concrete Co., 987 S.W.2d at
186.  Thus, the mere fact that the
protocol was apparently received by a DFPS employee and placed in the file does
not mean that it was admissible as a business record of DFPS.  See Armstrong, 145 S.W.3d at 139-140.  DFPS did not offer any other witness in
support of the admission of these statements. 
Thus, DFPS failed to lay a proper predicate for admission of the
protocol under the business records exception.
We next examine the Arlington Police
Department arrest warrant.  The warrant
itself simply commands the arrest of Mustofa for sexual assault of a
child.  An affidavit attached to the
warrant by an Arlington police officer relates statements made by J.J., Stacey,
LaChance, a CPS investigator, and the ABC Center P.A.[15]  Because most of the affidavit is comprised of
the officer relating what other adults said J.J. told them, the document
contains three levels of hearsay.  Again,
there is no evidence in the record that the Arlington Police Department was
operating under a representative capacity on behalf of DFPS when the record was
made.  Nor is there any evidence that any
employee of DFPS had
personal knowledge of the events described in the affidavit such that they
could verify the accuracy of the statements made therein.[16]
 See Duncan Dev., 634 S.W.2d at
814; Houston Shell
& Concrete Co., 987 S.W.2d at 186. 
Thus, the mere fact that the affidavit was apparently received by a DFPS
employee and placed in the file does not mean that it is admissible as a
business record of DFPS.  See Armstrong, 145 S.W.3d at 139-140.  DFPS failed to lay a proper predicate for
admission of the arrest affidavit under the business records exception.
 




2. 
The Public Records Exception
In its brief on appeal, DFPS further
suggests that the documents discussed above (e.g., Stacey=s and LaChance=s written
statements, the child abuse protocol, and the arrest affidavit) were also
admissible under the public records exception to the hearsay rule.  See Tex.
R. Evid. 803(8).  Rule 803(8)
reads as follows:
Public Records and Reports.  Records, reports, statements, or data
compilations, in any form, of public offices or agencies setting forth:
(A) the activities of the office or
agency;
(B) matters observed pursuant to
duty imposed by law as to which matters there was a duty to report, excluding
in criminal cases matters observed by police officers and other law enforcement
personnel;  or
(C) in civil cases as to any party
and in criminal cases as against the state, factual findings resulting from an
investigation made pursuant to authority granted by law;
unless the sources
of information or other circumstances indicate lack of trustworthiness.




Unlike business records, public records can be
self-authenticating if they are under seal or are certified copies.  See Tex.
R. Evid. 902(1), (4), (10); State v. Foltin, 930 S.W.2d 270, 272-73 (Tex. App.CHouston [14th Dist.] 1996, writ
denied) (AOnce a document has been
authenticated, Rule 803(8) does not require a formal predicate to be laid
through a witness, but the offered document must be shown to satisfy the
requirements of the rule.@).  None of the
documents at issue were either under seal or certified copies.  DFPS argues instead that they were public
records because they set forth the activities of DFPS, and DFPS was charged
with a legal duty to have the documents prepared or recorded.  Indeed, Lilly testified that DFPS was
required by statute to have the records in the case file prepared and reduced
to writing.  While this testimony may
have been applicable to some documents in the file, it was not relevant to
Stacey=s and LaChance=s written
statements, the child abuse protocol, or the arrest affidavit, since there has
been no showing that these documents were prepared by or for DFPS.[17]  DFPS offered no other evidence or argument in
support of admission under 803(8).
DFPS failed to lay a proper predicate for
admission of the documents under either the business records exception or the
public records exception.  DFPS does not
allege that the documents were admissible under any other exception and, more
importantly, did not lay any foundation in the trial court in support of any
other exception.  See Ramirez, 159
S.W.3d at 908 n.5 (stating that proponent of hearsay has the burden of showing
that the testimony fits within an exception to the general rule prohibiting the
admission of hearsay evidence). 
Consequently, the trial court erred in admitting Stacey=s and LaChance=s written
statements, the child abuse protocol, and the arrest affidavit over Mustofa=s hearsay
objections.
B. 
Statements of the Child




Under his second issue, Mustofa contends
that the trial court erred in finding that there were sufficient indications of
reliability to support admission of J.J.=s hearsay
statements to Stacey, LaChance, and CPS caseworker Amanda Dollar.  See Tex.
Fam. Code Ann. ' 104.006 (Vernon 2002).[18]  The statements at issue appear respectively
in Stacey=s and LaChance=s handwritten
statements and in a report prepared by CPS caseworker Jennifer Deible.  In the previous section of this opinion, we
held that the trial court erred in admitting Stacey=s and LaChance=s hearsay
statements.  Consequently, we need not
separately discuss the admissibility of the statements allegedly made by J.J.
and contained in the written statements of the two women.[19]  We therefore confine our consideration under
the present issue to whether J.J.=s alleged
statements to Dollar, as related in Deible=s report, were
admissible under section 104.006.




Prior to trial, Mustofa filed written
hearsay objections to Deible=s report, as well
as to other pieces of evidence.  When
Mustofa raised the objections in a pretrial hearing, the trial court stated that
it was going to deny the objections at that time but would consider each
individually when the evidence in question was presented.  Also prior to trial, DFPS filed a motion
seeking admission of J.J.=s statements to Dollar under section
104.006 of the Family Code.  That section
permits admission of the outcry statements of a child that would otherwise be
inadmissible hearsay, provided certain requirements are met.  Id.; In re K.L., 91 S.W.3d 1,
15  (Tex. App.CFort Worth 2002,
no pet.).[20]
 Mustofa filed a written response
arguing, among other things, that there were insufficient indications of
reliability to support admission of the statements as required under section
104.006.[21]  After the pre-trial hearing on the matter,
the court ruled that Aany outcry statements@ J.J. made to the
caseworker (Dollar) were admissible.
Clearly, section 104.006 requires that the
trial court hold a hearing to determine the reliability of an outcry statement
before admission.  See id.; In
re K.L., 91 S.W.3d at 16 (holding that hearing requirement is
mandatory).  Here, as mentioned, the
trial court held a hearing regarding the admissibility of J.J.=s statements to
Stacey, LaChance, and the CPS caseworker. 
At the hearing, the only evidence the court received was Stacey=s live testimony
and her deposition transcript.  Although
at this hearing, Stacey testified in detail regarding the statements J.J. made
to her, Stacey expressly stated that she was not present when J.J. made her
statements to the caseworker.[22]




The only other evidence regarding the
time, content, and circumstances of the statements is from the caseworker=s report in which
the statements appear.  The report
indicates that it was prepared by caseworker Deible, although it also indicates
that the interview was conducted by caseworker Dollar.  The report does not explain whether Deible
was present at the interview or how she learned of the details that she
recounts, although there is a notation that the interview was videotaped.  The report provides a date of the interview,
August 21, 2002, and a location, the Arlington Alliance for Children, but it
does not give any other explanation of the circumstances in which the interview
was given, including who was present. 
The text of the report is basically a list of statements made by
J.J.  Except for one question that J.J.
was asked about a drawing, the report does not provide any of the questions or
comments made during the interview by the interviewer.[23]  As the Texas Supreme Court has recognized,
the reliability of a child=s outcry statement
may turn on whether the child was asked leading questions or simply allowed to
tell what happened to him or her.  See
Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984); see also In
re P.E.W., 105 S.W.3d 771, 775 (Tex. App.CAmarillo 2003, no
pet.) (considering fact that many of child=s statements were
volunteered in assessing reliability under section 104.006).  The report additionally does not indicate
whether a predicate was laid for whether J.J. understood the difference between
truth and lies.  See In re P.E.W.,
105 S.W.3d at 775 (considering child=s explanation when
asked whether he knew truth from lies in assessing reliability under section
104.006).
In conclusion, the contents of the report
itself do not demonstrate sufficient indicia of reliability.  Because DFPS did not present any other
evidence of the reliability of J.J.=s statements to
Dollar, we find that there was an insufficient demonstration of reliability to
support admission under section 104.006. 
The trial court erred in admitting the hearsay statements.[24]




C. 
Harm
Having concluded that the trial court
erred in admitting certain documents over Mustofa=s hearsay
objections, we must now determine whether such error was harmful.  See Tex.
R. App. P. 44.1; Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d
394, 396 (Tex. 1989).  To establish harm
(i.e., that the error was reasonably calculated to cause and probably
did cause rendition of an improper judgment), the appellant must demonstrate
that the excluded evidence was both controlling on a material issue and not
cumulative of other evidence. 
Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex.
1995).  Error in the admission of
evidence is generally deemed harmless if the same or similar evidence is subsequently
introduced without objection.  Volkswagen
of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004); Richardson,
677 S.W.2d at 501.  Application of this
rule requires an assessment of whether the subsequently admitted evidence is
sufficiently similar to the objected-to evidence so as to render admission of
the objected-to evidence harmless.[25]  See Richardson, 677 S.W.2d at
501.  Whether erroneous admission was
harmful is often more a matter of judgment than precise measurement.  Armstrong, 145 S.W.3d at 144.




The trial court erred in admitting the
following evidence pertaining to the sexual abuse allegations J.J. made against
Mustofa: (1) Stacey=s written statement, (2) LaChance=s written
statement, (3) the child abuse protocol, (4) the arrest warrant affidavit, and
(5) the CPS caseworker=s report. 
However, these were not the only pieces of evidence suggesting that
Mustofa sexually assaulted J.J.  The
documents contained in petitioner=s exhibit 1 are
replete with references to the abuse allegations and the investigation of
Mustofa.  Most of these references come
in the form of other reports filed by CPS and DFPS employees, including
narrative analyses, closing summaries, and summaries of interviews.  Although this evidence also contains hearsay,
it was either not objected to or no ruling was obtained on any such
objection.  Thus, the jury could have
properly considered it.  See Tex. R. Evid. 802 (AInadmissible
hearsay admitted without objection shall not be denied probative value merely
because it is hearsay.@). 
We must determine whether the properly considered evidence was
sufficiently similar to the erroneously considered evidence to render admission
of the erroneously considered evidence harmless.  See Richardson, 677 S.W.2d at 501.
In Richardson, a parental termination case, the
respondent was accused of sexual abuse of a child.  He objected to testimony from a Department of
Human Resources caseworker regarding what the child said during an initial
visit, but he did not object to the playing of a videotape of a subsequent
interview of the child by the same caseworker. 
677
S.W.2d at 501.  The supreme court held that the statements
were not sufficiently similar so that the failure to object to the videotape
did not render the admission of the statements from the initial visit harmless.  The court emphasized that the statements made
by the child in the initial visit were produced Awithout any leading or solicitation,@ but the videotaped interview was
filled with leading questions by the caseworker.  Id. 
The court further noted that the child=s responses on the videotape were Aat best contradictory, unclear and,
more often than not, negated the claim [against] his father.@ 
Id.  The court concluded
that A[t]he court and jury did not get the
same picture from . . . what was said . . . in the first interview as they did
from the videotape of the second interview.@ 
Id.




Here, the erroneously admitted evidence
included the written accounts of four people (Stacey, LaChance, the P.A, and
the caseworker) purporting to relate the actual statements made by the alleged
victim concerning the abuse.  The
erroneously considered results of the medical examination by the P.A. were
consistent with these statements, and an official police document (the arrest
affidavit) again recounted the specific allegations.  We contrast this detailed but erroneously
considered evidence with the evidence that the jury properly considered:
narrative analyses by caseworkers, closing summaries, and summaries of
interviews.  In short, the evidence that
was erroneously admitted was strikingly more detailed, more focused on the
allegations themselves, and closer to the source than was the other evidence
relating to sexual abuse by Mustofa. 
Also in the record was evidence that the criminal charges and the
earlier CPS investigation relating to the sexual abuse allegations were both
dropped.  Additionally, there was
evidence that J.J. may have falsely accused another man of sexually molesting
her, and at trial, Stacey largely denied the accuracy of J.J.=s allegations
against Mustofa.  With this evidence in
mind, the jury probably would not have seen the properly admitted DFPS
summaries and less-detailed narrative reports as particularly strong evidence
that Mustofa sexually assaulted J.J.




Certainly, the jury charge provided other
predicate grounds on which the jury could have found that Mustofa=s parental rights
should be terminated; however, it is clear from the record that DFPS emphasized
the sexual abuse allegations throughout trial as the primary ground for
termination.  Revealingly, when Jennifer
Lilly, the DFPS caseworker who testified on behalf of the agency, was asked at
trial whether she knew of any reason why E.A.K. should not be placed with
Mustofa that was not related to the sexual abuse allegations, she was unable to
provide a responsive answer.[26]  Furthermore, during closing argument,
although DFPS=s counsel alleged as grounds that Mustofa
allowed Stacey to care for E.A.K. even though there was evidence she was
mentally ill, that Mustofa failed to complete his reunification plan, and that
he failed to support E.A.K. to the best of his ability, counsel for DFPS
emphasized the sexual abuse allegations three times during his brief closing
remarks.[27]  See Armstrong, 145 S.W.3d at 144 (stating that courts sometimes look to
efforts made by counsel to emphasize erroneous evidence in determining whether
admission was harmful).
In conclusion, the jury=s findings
probably turned on its consideration of the erroneously admitted evidence.  Thus, we hold that the trial court=s admission errors
were reasonably calculated to cause and probably did cause the rendition of an
improper judgment.  See Franklin,
898 S.W.2d at 817; Richardson, 677 S.W.2d at 501.  We sustain Mustofa=s first and second
issues.[28]
IV.  Legal Sufficiency
In his third through sixth issues, Mustofa
contends that the evidence was legally insufficient to support the jury=s finding on each
predicate ground for termination of his parental rights to E.A.K.  In his seventh issue, he contends that there
was legally insufficient evidence to support the finding that termination was
in E.A.K.=s best interest.[29]  We utilize the established standards of
review in considering these legal sufficiency challenges.  See City of Keller v. Wilson, 168
S.W.3d 802, 809-23, 827-28 (Tex. 2005). 
In parental termination cases, the burden of proof for termination is by
clear and convincing evidence.  Tex. Fam. Code Ann. ' 161.001 (Vernon
2002).  Clear and convincing evidence is
that Ameasure 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.  In considering the evidence, we must bear in
mind this elevated burden of proof   See
Wilson, 168 S.W.3d at 817; In re J.F.C., 96 S.W.3d 256, 264 (Tex.
2002).




One of the grounds presented to the jury
for termination of Mustofa=s rights was that
he had Aengaged in conduct
or knowingly placed [E.A.K.] with persons who engaged in conduct which
endangers the physical or emotional well-being of [E.A.K.].@  See 
Tex. Fam. Code Ann. '
161.001(1)(E).  AEndanger@ in this context
means more than a threat of metaphysical injury or the possible ill effects of
a less‑than‑ideal family environment; however, it does not require
that the conduct be directed at the child or that the child actually suffer
injury.  Tex. Dept. of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987). 
AEndanger@ here means Ato expose to loss
or injury; to jeopardize.@  Id.  Courts of appeals have consistently held in
termination cases that evidence a parent has sexually or physically abused a
child not subject of the termination action also constitutes evidence of
endangerment to the child subject to the termination action.  See, e.g., In re R.W., 129 S.W.3d 732,
742  (Tex. App.CFort Worth 2004,
pet. denied); In re King, 15 S.W.3d 272, 276 (Tex. App.CTexarkana 2000,
pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.CEastland 1999, no
pet.); Director of Dallas County Child Protective Servs. Unit of Tex. Dept
of Human Servs. v. Bowling, 833 S.W.2d 730, 732-33 (Tex. App.CDallas 1992, no
pet.), overruled on other grounds, In re C.H., 89 S.W.3d 17, 26
(Tex. 2002).  The basic logic of these
cases is that a trier of fact may infer endangerment to one child from actual
harm caused to another child.  See,
e.g., In re King, 15 S.W.3d at 276; Bowling, 833 S.W.2d at 733.
In the present case, as discussed above
under the harm analysis relating to the admission of hearsay, there was
considerable evidence suggesting that Mustofa sexually abused J.J.  Although some of this evidence was admitted
in error, additional evidence was either properly admitted or admitted without
objection.  Thus, the jury could have
properly considered it.  See Tex. R. Evid. 802.  This properly considered evidence supports
the conclusion that Mustofa molested J.J. while she was living in his home and
under his care and while E.A.K. was also present in the home.  Consequently, we find that it constituted
legally sufficient evidence of endangerment to E.A.K. to support the jury=s finding of
termination.




Because we find that there was legally
sufficient evidence to support one of the predicate findings for termination of
Mustofa=s parental rights,
we need not address the sufficiency of the evidence relating to other predicate
findings.  See In re A.V., 113
S.W.3d 355, 362 (Tex. 2003); In re U.P., 105 S.W.3d 222, 236 (Tex. App.CHouston [14th
Dist.] 2003, pet. denied).  Accordingly,
Mustofa=s third through
sixth issues are overruled.
In his seventh issue, Mustofa contends
that there was legally insufficient evidence to support the jury=s finding that the
termination of his parental rights was in E.A.K.=s best
interest.  Under the charge, and section
161.001(2) of the Family Code, a parent=s rights can be
terminated only upon a showing that the termination is in the best interest of
the child.  Tex. Fam. Code Ann. ' 161.001(2).  The charge also provided seventeen factors
for the jury to consider in relation to best interest, including:  the emotional and physical needs of the child
now and in the future; any emotional and physical danger to the child now and
in the future; the parenting ability of the individuals seeking custody; the
acts or omissions of the parent that may indicate that the relationship is not
a proper one; any excuse for the acts or omissions of the parent; whether there
is a history of abusive or assaultive conduct by the parent; and whether the parent
demonstrates adequate parenting skills, including providing the child and any
other child under the family=s care with care,
nurturance, a safe and stable physical environment, and protection from
repeated exposure to violence whether or not directed at the child.  See generally Tex. Fam. Code Ann. ' 263.307 (Vernon
2002) (listing factors relevant to determining best interest of a child); Holley
v. Adams, 544 S.W.2d 36, 371-72 (Tex. 1972) (same).




The evidence that Mustofa sexually abused
J.J. while she was in his home and while E.A.K. was also in the home is
relevant to each of these listed factors.[30]  Numerous cases have held that evidence of
continued exposure to a child abuser constitutes legally sufficient evidence
that termination is in the best interest of the child.  See, e.g., In re S.F., 141 S.W.3d 774,
777-78 (Tex. App.CTexarkana 2004, no pet).  In accordance, we find that there was legally
sufficient evidence that termination of Mustofa=s parental rights
would be in E.A.K.=s best interest.
Because we find that the trial court erred
in admitting hearsay statements into evidence and such error was not harmless,
we sustain Mustofa=s first and second issues, reverse the
trial court=s judgment, and remand for further
proceedings in accordance with this opinion.
 
 
 
 
 
 
/s/      Adele Hedges
Chief Justice
 
 
 
 
Judgment
rendered and Majority and Dissenting Opinions filed February 28, 2006.
Panel
consists of Chief Justice Hedges and Justices Anderson and Frost. (Frost, J.
dissenting).




[1]  CPS is a
division of the Texas Department of Family and Protective Services (ADFPS@).  See Tex. Fam. Code Ann. ' 264.404 (Vernon Supp. 2004-05).  This agency was formerly known as the
Department of Protective and Regulatory Services (ADPRS@).  See John J. Sampson & Harry L. Tindall, Texas
Family Code Annotated, Chapter 264, Editor=s Note,
p. 1122 (2005).  Because documents in the
record refer to CPS, DFPS, and DPRS, we use these names interchangeably in this
opinion.


[2]  Among the
allegations contained in the various statements and reports are that Mustofa
digitally penetrated J.J.=s vagina, rubbed her vagina with his hand, asked to
see her vagina, revealed his penis to her, masturbated in front of her, made
her touch his penis, lay on top of her and made a grinding motion, and
penetrated her anus with his penis. 
Stacey also alleged in her statement that Mustofa had child pornography
on his computer.  Mustofa denied all of
the allegations.


[3]  See note
1 supra.


[4]  Evidence was
adduced at trial that Stacey has a long history of mental problems.


[5]  The Texas
Attorney GeneralCChild Support Division had apparently already filed a
lawsuit against Mustofa, but the petition in that case is not in the clerk=s record on appeal. 
DFPS intervened in the existing lawsuit.


[6]  There was also
evidence that at the time of trial, E.A.K. had been in DFPS custody for about
one and a half years.  He was found to
have difficulty walking and a speech delay. 
He has reportedly progressed well in speech therapy and is expected
outgrow the walking problems.  He was
placed with a foster family with two parents and four other children (one
adopted child and three other foster children). 
Both the DFPS case worker and the ad litem assigned to the case reported
that E.A.K. was doing well with the foster family.  Both Stacey and Mustofa have visited E.A.K.
since he was taken by DFPS.  Although it
was reported that generally, Mustofa and E.A.K. interacted well on the visits,
there was apparently no verbal communication between them.  Mustofa testified that if given primary
custody of E.A.K., he planned to take the child to New Jersey where Mustofa=s uncle and two cousins live.  He said that they were good with children and
would help him raise E.A.K.


[7]  Neither
Mustofa=s presentation of this issue on appeal nor his
objections in the trial court are models of preservation of error.  On appeal, Mustofa generally discusses
whether documents not generated by DFPS should have been admitted but only
specifically discusses one documentCthe
arrest warrant.  In the trial court,
Mustofa=s objections were also rather general; indeed, he did
not even specifically identify the arrest warrant as an objected-to
document.  See generally Rogers v.
Dept. of Family & Protective Servs., No. 01-01-01152-CV, 2005 WL
375324, at *4-5 (Tex. App.CHouston [1st Dist.] Feb. 17, 2005, pet. dism=d w.o.j.) (AA
general hearsay objection does not preserve for appeal a challenge to a proper
predicate=s being made to admit business records.@).  However,
because in his appellate brief Mustofa did cite to his trial objections, and it
is clear from those objections that he was objecting to documents offered under
the business records exception by DFPS because they were not prepared by DFPSCincluding Areports
or records@ prepared by the Arlington Police DepartmentCwe will not overrule his issues based on improper
briefing or waiver.  Compare In re
K.C.P., 142 S.W.3d 574, 578-79 (Tex. App.CTexarkana
2004, no pet.) (holding that although hearsay objections to business records
were Asomewhat imprecise,@ they
were sufficient to bring the issue to the trial court=s attention), and All Saints Episcopal Hosp. v.
M.S., 791 S.W.2d 321, 323  (Tex. App.CFort Worth 1990) (holding that although hearsay
objection to records did not specifically point to each and every objectionable
statement, it was specific enough to alert trial court as to what was
objectionable in the records), writ granted, vacated w.r.m., 801 S.W.2d
528 (Tex. 1991), with R.R. Comm=n
v. S. Pac. Co., 468 S.W.2d 125, 128
(Tex. Civ. App.CAustin) (questioning whether a party that offers
voluminous records shifts the burden to the opposing party to cull out
objectionable material), writ ref=d
n.r.e., 471 S.W.2d 39 (Tex.
1971).  We further note that DFPS=s offer of a 1,176 page case file as a single exhibit
certainly contributed to the difficulties that all parties and the trial court
apparently had in resolving the issue of the admissibility of the documents.


[8]  The assessment was later admitted
without objection during the testimony of the therapist who performed the
assessment.


[9]  See
note 1 supra.


[10]  It is likely
that certain statements contained within the home study constituted an
additional level of hearsay, since they recount what the contractor was told by
the couple subject to the study, as well as by others.  See, e.g., All Saints Episcopal Hosp.,
791 S.W.2d at 322-23 (holding that social worker=s
facility investigation report was admissible as a public record but statements
from parents contained in the report were not admissible).  However, these statements have no apparent
relevance to the issues in the case before us, so we will not discuss their
admissibility in detail.  We further note
that Mustofa did not specifically object to these statements.


[11]  The statements
contained additional hearsay in that Stacey recounted statements made by J.J.=s school counselor, and LaChance recounted statements
made by one of her own daughters as well as by Stacey.


[12]  Stacey=s statement details a conversation she had with her
nine-year-old daughter.  LaChance=s statement details statements made by J.J. while J.J.
was playing with LaChance=s daughters. 
There was no evidence or even a suggestion that Stacey or LaChance was
an employee or representative of DFPS at the time the statements were made or
at any time.


[13]  The P.A.
stated in the protocol that her findings did not rule out sexual abuse and were
consistent with the outcry statements and the time elapsed.  She also noted that J.J. hid under a desk
during part of the interview and appeared to have a Aflashback,@ which
involved screaming and crying, during the examination.


[14]  On the
protocol, in the information blanks following the question ALaw enforcement officer involved?@ the P.A. listed an Arlington Police Department
detective and a CPS caseworker.  In the
blank following the question AChild referred by?@  the P.A. wrote AFam.
Med.CLeah Fanuil (SW).@  The document does not give an indication as
to just what these answers mean. 
Although we generally make reasonable inferences in favor of a trial
court=s ruling, there is not enough information on the face
of the form to support a conclusion that the ABC Center or the P.A. completed
the protocol as a representative of DFPS.


[15]  We interpret
Mustofa=s attack on the warrant as encompassing the attached affidavit
as well.  See note 7 supra.


[16]  While it is
true that the affidavit purports to set forth statements made by a CPS employee
to the Arlington police officer who drafted the affidavit, the business record
exception generally cannot be established on the face of the document itself
but requires live testimony or an affidavit from a witness shown to be
qualified.  See State v. Foltin,
930 S.W.2d 270, 272-73 (Tex. App.CHouston
[14th Dist.] 1996, writ denied).  Lilly
was the only witness offered by DFPS in this regard, and she is not the CPS
employee whose statements appear in the Arlington arrest affidavit.


[17]  It should also
be noted that even if the documents were admissible under the public records
exception, this would suffice for getting past only the first level of
hearsay.  See Corrales v. Dept. of
Family & Protective Servs., 155 S.W.3d 478, 486 (Tex. App.CEl Paso 2004, no pet.) (holding that while a police
officer=s factual findings in a police report may qualify as a
public record, the statements of witnesses in the report would not) (citing Kratz
v. Exxon Corp., 890 S.W.2d 899, 905 & n.5 (Tex. App.CEl Paso 1994, no writ)).  As discussed above, each of the documents at
issue contained more than one level of hearsay.


[18]  Additionally,
Mustofa argues that the trial court erred in admitting J.J.=s statements without requiring the testimony of the
individuals to whom the statements were made. 
Because of our resolution of the contention made above, we need not
address this additional argument.


[19]  As mentioned
above, Stacey=s and LaChance=s
statements each contained at least two levels of hearsay:  they were out-of-court statements by Stacey
and LaChance relating out-of-court statements by J.J., among others.  They were thus inadmissible if either level
was not admissible under an exception to the hearsay rule.  See Tex.
R. Evid. 805.


[20]  Section
104.006 provides:
 
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 for 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.
 
Tex. Fam. Code Ann. ' 104.006.


[21]  Although
Mustofa=s section 104.006 response did not expressly state a
hearsay objection, it is clear from the context that this was the basis for his
objection to admission of the statements. 
As noted above, Mustofa had previously filed a written hearsay objection
to Deible=s report.  When
it was raised in a pretrial hearing, the judge stated that she was going to
deny the objection at that time but would consider it when the evidence was
presented for admission.  DFPS=s section 104.006 motion, in effect, presented J.J.=s statements for admission into evidence.  Thus, the proceedings on that motion would
have been the time for the judge to consider Mustofa=s earlier hearsay objection, as the judge
promised.  Indeed, the judge stated that
she would entertain the hearsay objections individually and considered the
section 104.006 issue in the same hearing.  At the conclusion of those proceedings, the
court admitted Aany outcry statements made by [J.J.] to the
caseworker.@  Thus, the
trial court implicitly overruled Mustofa=s
hearsay objection.  Furthermore, the very
point of DFPS=s motion under section 104.006 was the admission of
evidence that might otherwise be inadmissible hearsay.  See Tex. Fam. Code Ann. ' 104.006; In re K.L., 91
S.W.3d at 15.


[22]  In her
testimony, Stacey largely denied the accuracy of J.J.=s allegations against Mustofa.


[23]  According to
the report, J.J. was shown a drawing of two stick figures, one with a heart
above it and the other with a star above it. 
She was asked which one was true, and she responded that the one with
the heart above it was correct.  There is
no explanation in the record as to what J.J.=s
response might indicate.


[24]  The dissent
concludes that Mustofa failed to preserve error in relation to J.J.=s statements as contained in Deible=s report.  The
dissent acknowledges, however, that (1) Mustofa filed a written hearsay
objection to Deible=s report, (2) the trial judge indicated that she would
consider each objection when the objected-to evidence was offered, (3) DFPS
moved for the admission of J.J.=s statements to Dollar under section 104.006, (4)
Mustofa filed a written response objecting to admission of the statements based
on their unreliability, (5) the trial court held a hearing regarding the
reliability of the statements, and (6) the trial court admitted the
statements.  Nonetheless, the dissent
would hold that because Mustofa did not specifically mention that the
statements to caseworker Dollar were contained in caseworker Deible=s report, Mustofa failed to preserve error in the
admission of the statements.  We agree
with the dissent that Mustofa=s presentation of this issue in the trial court was
not a model for preservation of error.  See
n.7 supra.  It is clear,
however, that Mustofa apprised the trial court of the basis of his objection to
the statements.  Compare In re K.C.P.,
142 S.W.3d at 578-79 (holding that although objections to business records were
Asomewhat imprecise,@ they
were sufficient to bring the issue to the trial court=s attention), and All Saints Episcopal Hosp.,
791 S.W.2d at 323 (holding that although objection to records did not
specifically point to each and every objectionable statement, it was specific
enough to alert trial court as to what was objectionable in the records), with
R.R. Comm=n, 468
S.W.2d at 128 (questioning whether a party that offers voluminous records
shifts the burden to the opposing party to cull out objectionable
material).  The trial court ruled that
the statements were admissible.  It is
inconceivable that had Mustofa=s counsel said the words ADeible report@ during
the section 104.006 proceedingsCas the dissent says counsel should haveCthat this would have had any impact on the judge=s ruling.


[25]  This analysis
is to some degree similar to the analysis undertaken when a proponent of
excluded and allegedly cumulative evidence complains on appeal.  See Rodriguez v. State, 926 S.W.2d
379, 381-82 (Tex. App.CSan Antonio 1996, no writ) (comparing the two sets of
analyses).  In that context, the mere
fact that the same or similar evidence may have already been introduced is not
necessarily decisive.  Rather, the
reviewing court must consider whether the excluded evidence would have added
substantial weight to the complainant=s
case.  See In re N.R.C., 94 S.W.3d
799, 807 (Tex. App.CHouston [14th Dist.] 2002, pet. denied); Sims v.
Brackett, 885 S.W.2d 450, 454 (Tex. App.CCorpus
Christi 1994, writ denied).  Of course,
under either analysis, the ultimate issue remains the same: whether the error
was reasonably calculated to cause and probably did cause rendition of an
improper judgment.


[26]  It is unclear
whether the context of this question was solely limited to the time when E.A.K.
was taken from his mother=s custody. 
However, it is a revealing answer regardless of specific context.


[27]  It should be
noted that during a prolonged period of time, Mustofa was prevented from taking
E.A.K. from Stacey due to the ongoing sexual abuse investigation; a fact
acknowledged by DFPS counsel in closing. 
Additionally, counsel admitted that there was very little evidence
introduced regarding Mustofa=s ability to support E.A.K. during the relevant time
period.


[28]  The dissent
concludes that the trial court=s hearsay errors were harmless because the trial court
did not err in admitting the CPS caseworker=s
report, which included J.J.=s outcry statements. 
Because we hold above that the trial court indeed did err in admitting
the hearsay statements contained in the report, we respectfully disagree with
the dissent=s harm analysis.


[29]  In issues
three through seven, Mustofa also attacks the factual sufficiency of the
evidence.  However, because a holding of
factual insufficiency would result only in a reverse and remandCthe same outcome as our determination above that
Mustofa was harmed by the trial court=s
evidentiary errorsCwe need not undertake a factual sufficiency analysis.


[30]  Mustofa also
presented evidence that he loved E.A.K., had bonded with him, helped support
him, and was caring and loving toward him, and that he, Mustofa, had attended
parenting classes.  Mustofa additionally
testified that he would never harm E.A.K. 
However, although relevant to the jury=s
deliberations, such evidence did not directly refute the evidence of sexual
abuse and thus is not relevant to our legal sufficiency analysis.


