In the Interest of R.L.C. and J.M.C., Jr., Children v. .

Fourth Court of Appeals
San Antonio, Texas
OPINION

No. 04-25-00684-CV

IN THE INTEREST OF R.L.C. and J.M.C., Jr., Children

From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. BADC-CVPC-XX-XXXXXXX
Honorable M. Patrick Maguire, Judge Presiding

Opinion by: Velia J. Meza, Justice

Sitting: Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
Velia J. Meza, Justice

Delivered and Filed: April 1, 2026

AFFIRMED

Father appeals the termination of his parental rights to two children, R.L.C. and J.M.C.,

Jr. 1 Father argues that the trial court erred by admitting two outcry statements over his hearsay

objections. The Texas Department of Family & Protective Services, as proponent of the testimony,

argued the statements should be admitted under section 104.006 of the Texas Family Code. We

hold the statements were properly admitted under that section and affirm.

1
To protect the identity of the children and persons through whom they could be identified, we will refer to appellant
as “Father” and to the children by their initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8. Mother
relinquished her rights and does not appeal.
04-25-00684-CV

BACKGROUND

Police arrested Father on outstanding criminal charges while he and his two children—6-

year old, R.L.C., and 2-year old, J.M.C., Jr.—were homeless. The night of his arrest, Father agreed

to release the children to a trusted caregiver. The caregiver observed numerous bug bites on both

children’s legs and the children exhibited behaviors that indicated they may have been sexually

abused. While showering, R.L.C. made an outcry of sexual abuse to the caregiver, who then

reported it to law enforcement and the Department. And during a forensic interview, R.L.C. made

another outcry of sexual abuse—this time with more detail.

The case was tried to the bench before an associate judge. See TEX. FAM. CODE §

201.005(b) (authorizing associate judge to preside over trial on the merits in suit under Title 5).

After the associate judge signed a proposed order recommending termination, see id. §

201.007(a)(10), Father requested a de novo hearing before the district judge, see id. § 201.015. At

the de novo hearing—which was again tried to the bench—the transcript from the hearing before

the associate judge was admitted into evidence without objection and no testimony was heard. The

district judge then signed an order adopting the associate judge’s recommendation, terminating

Father’s parental rights, from which he now appeals.

DISCUSSION

1 Hearsay Exception Under Texas Family Code § 104.006

We review a trial court’s evidentiary rulings for abuse of discretion. Sw. Energy Prod. Co.

v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016). In a suit under Title 5 of the Texas Family

Code, there is an exception to the hearsay rule for “outcry” statements of a child under 12 years of

age that describe abuse against the child if, in a hearing outside the presence of the jury, the court

finds that the statement is reliable and either (1) the child is available to testify, or (2) the court

-2-
04-25-00684-CV

determines admission of the statement in lieu of live testimony is necessary to protect the welfare

of the child. TEX. FAM. CODE § 104.006. These prerequisites are mandatory but may be implied

where, as here, there are no findings of fact or conclusions of law. Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990) (per curiam).

This “outcry witness” hearsay exception has analogues in juvenile justice and criminal

proceedings. See TEX. FAM. CODE § 54.031 (applying to juvenile justice proceedings) and TEX.

CODE CRIM. PROC. art. 38.072 § 2 (applying to criminal proceedings). Unlike in the juvenile or

criminal context, this exception does not require that the witness testifying to the outcry statement

be “the first person, 18 years of age or older, to whom the child” made a statement about the

offense, abuse, or act. Compare TEX. FAM. CODE § 104.006 with TEX. FAM. CODE § 54.031(b)(2)

and TEX. CODE CRIM. PROC. art. 38.072 § 2(a)(3).

Father argues that he promptly objected and the trial court heard only argument of counsel

before overruling his objection; thus the court did not base its ruling on any evidence. The trial

court overruled at least five hearsay objections based upon section 104.006 during the examination

of two witnesses. Father does not specify which objection he thinks the trial court erroneously

overruled. On the first objection, counsel for the Department stated, “I think you will hear that the

circumstances – the time, content, and circumstances lend credibility in terms of both how this

story is told and the physical evidence that corroborated it externally.” The child’s attorney ad

litem added, “The child was six, the statement was made spontaneously to a trusted adult, and the

context supports the reliability.” On the fourth objection, the trial court explicitly found that the

testimony “clearly” fell under the statutory exception.

-3-
04-25-00684-CV

We construe Father’s appellate challenge as arguing two things: (1) the trial court

prematurely ruled on admissibility, and (2) even considering the whole record, the requirements

of section 104.006 were not met. We address each argument in turn.

1.1 Timing of the Ruling

Because the judge serves as sole fact finder in a bench trial, no separate admissibility

hearing is required before evidence may be considered. The text of the statute prescribes that a

hearing must be held “outside the presence of the jury,” but there is no provision for cases without

juries. See In re K.L., 91 S.W.3d 1, 17 (Tex. App.—Fort Worth 2002, no pet.) (concluding that

trial court, sitting as factfinder, need not determine admissibility before hearing evidence under

section 104.006); see also TEX. R. CIV. P. 262 (“The rules governing the trial of causes before a

jury shall govern in trials by the court in so far as applicable.”). The trial court must consider the

content of the statements to determine their reliability. In re E.M., 494 S.W.3d 209, 219 (Tex.

App.—Waco 2015, pet. denied). And thus, it must hear the statements to determine admissibility.

Here, the trial court immediately overruled Father’s many hearsay objections. The court

did not defer its decision on admission until it heard the outcry statements. Perhaps a more cautious

approach would have been to, for example, conditionally admit the outcry statements before

competent evidence supporting admission under section 104.006 had been heard. The court could

then rule on admissibility once enough evidence or context had been adduced. However, even if

we assume this is error, we cannot say it was harmful. The full statements along with context were

eventually heard and Father’s continued objections prompted further admissibility rulings by the

court. Any error in prematurely ruling in this manner is harmless on this record. See TEX. R. APP.

P. 44.1; see also K.L., 91 S.W.3d at 17.

We next address the substantive requirements of section 104.006.

-4-
04-25-00684-CV

1.2 Reliability

The first requirement for admissibility is reliability. TEX. FAM. CODE § 104.006. Reliability

is determined by examining the time the child’s statement was made to the outcry witness, the

content of the child’s statement, and the circumstances surrounding the making of the statement.

E.M., 494 S.W.3d at 219. The focus should be on the reliability of the testimony, how accurately

the witness can recall the outcry statement and whether the testimony is sufficiently trustworthy,

not the credibility of the child. Id.

Two witnesses testified to R.L.C.’s outcry statements: (1) a forensic interviewer at a child

advocacy center—Victoria Hefley, and (2) a bible teacher, former foster mom, and adoptive

placement for the children—“Judy.” 2 R.L.C. was around the age of six at the time of both

statements. Because the statements must each meet the reliability requirement of section 104.006,

we analyze them independently.

Victoria Hefley testified that, during the forensic interview, the child said her father

“cleaned her pee-pee” and, when acting out how the “cleaning” occurred, digitally penetrated her

vagina and moved her fingers in a circular motion. Sometimes her father touched her over her

underwear. The child also described her father penetrating her anus with his finger. Hefley stated

that R.L.C.’s actions while she recounted the sexual abuse were so extreme that the interview

recording itself could be considered child sexual abuse material—something that has occurred only

2
In his brief, Father minimizes Ms. Hefley’s testimony by incorrectly asserting she was “in the employ of the
Department.” Hefley testified that she is the “director of forensic services” for “Hill Country Crisis Council Kids
Advocacy.” Children’s advocacy centers work with the Department but are not in their employ. They are established
by community members who work with the Department, local law enforcement, and the local county attorney or
district attorney to (1) minimize the revictimization of alleged abuse and neglect victims and nonoffending family
members through the investigation, assessment, intervention, and prosecution processes, and (2) maintain a
cooperative team approach to facilitate successful outcomes in criminal justice and child protection systems through
shared fact-finding and strong, collaborative case development. TEX. FAM. CODE § 264.402–.403. As relevant here,
children’s advocacy centers provide “forensic interviews” that are conducted in “a neutral, fact-finding manner and
coordinated to avoid duplicative interviewing.” Id. § 264.405(b)(7).

-5-
04-25-00684-CV

once in her career before. 3 “[S]he very regularly was touching her vagina in the room and she was

doing things that were not redirectable.” R.L.C. told Hefley that her father showed her

pornographic videos and took “pictures and videos” of her and her little brother naked.

Hefley testified she assessed R.L.C.’s ability to discern truth from fiction. And Hefley

screened for alternative hypotheses like innocent cleaning. R.L.C. told Hefley no one other than

her parents and brother touched her “pee-pee” and no one other than her father and brother touched

her butt. Initially, R.L.C. stated that her parents did not touch “in her pee-pee” but, later in the

interview, said Father touched “in her pee-pee.” Hefley testified that this inconsistency was

expected for R.L.C.’s age and that it “could” be a traumatic response to the sexual abuse. The child

told Hefley that she wasn’t coached except that her caregiver, Judy, “told her to tell the truth that

day.”

The time, content, and circumstances of R.L.C.’s statement to Hefley shows sufficient

indicia of reliability. The statement was made to a professional forensic interviewer trained to ask

questions in a neutral, fact-finding manner. Given the time, content, and circumstances of the

child’s statement to Hefley, the trial court could reasonably conclude the statements were reliable.

We reach the same conclusion for R.L.C.’s statement to Judy. It was made to someone she

had just met—a former foster mom who provided her with love and comfort immediately and

unconditionally. The statement was initially made in the context of taking a shower and the child

described inappropriate “cleaning.” Portions of her story were directly corroborated by physical

evidence—a picture of her underwear showed spotting and mucus-filled discharge—and her

behavior—the child was quick to take off her clothes around strangers and in other inappropriate

situations. This is enough for the trial court to reasonably conclude the statement was reliable.

3
Hefley testified that she has conducted over a thousand forensic interviews of children.

-6-
04-25-00684-CV

The next required finding requires either that the child is available to testify, or that

admission of the outcry statement in lieu of live testimony is necessary to protect the welfare of

the child. TEX. FAM. CODE § 104.006.

1.3 Availability to Testify

Father argues there was no evidence the child was available to testify. See id. § 104.006(1).

In response to one of Father’s several hearsay objections, counsel for the Department argued that

R.L.C. was available to testify because Father did not issue a subpoena to compel the child to

testify, the child is within subpoena range, and neither side offered the child as a witness. On

appeal, the Department argues that because there was no evidence R.L.C. was unavailable to

testify, we must presume she was available. We agree with Father.

The proponent of hearsay has the burden of showing the testimony fits within an exception.

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004). Argument of counsel

is not evidence. Tex. Dep’t of Pub. Safety v. Mendoza, 952 S.W.2d 560, 564 (Tex. App.—San

Antonio 1997, no writ). The Department concedes there was no evidence the child was available

to testify. Therefore, in the absence of some intervening principle we must conclude this prong

was not met. The Department argues we should apply a presumption of availability where the

record is silent and cites to In re K.L., 91 S.W.3d 1 (Tex. App.—Fort Worth 2002, no pet.) as

support. We reject this argument for three reasons.

First, our sister court was considering a fundamentally different issue in K.L.—whether

trial counsel provided ineffective assistance by failing to object to hearsay under section 104.006.

91 S.W.3d at 16. Importantly, the trial court offered to allow the child to testify, no party indicated

the child was unable to testify, and no party took up the court’s offer. Id. The court concluded that

counsel could not have been deficient because, among other things, the trial court could have

determined the child was available to testify. Id. at 16–17. Unlike in K.L. where the issue was

-7-
04-25-00684-CV

whether there was sufficient due process, here Father challenged the availability element of the

hearsay exception, triggering an abuse of discretion review that requires some evidence supporting

the court’s exercise of discretion. See Berry-Helfand, 491 S.W.3d at 727. There is no evidence in

the record concerning availability.

Second, the Department’s argument is contrary to the plain text of the statute which

requires a finding that the witness has testified or is available to testify. See TEX. FAM. CODE §

104.006(1). We presume that the Legislature purposefully chooses which words to include in a

statute and which to omit. Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518

S.W.3d 318, 325–26 (Tex. 2017). Were we to adopt the Department’s argument, we would

impermissibly rewrite the statute to create a presumption that a child is available to testify until

proven otherwise. Cf. TEX. R. EVID. 601(a) (creating a presumption that witnesses are competent).

And the Department has pointed to nothing in the statute’s history, context, or structure which

suggests we should imply such a presumption.

Third, in the context of the criminal analogue of section 104.006, the “availability”

requirement is often satisfied by the child testifying. See, e.g., Hollinger v. State, 911 S.W.2d 35,

40 (Tex. App.—Tyler 1995, pet. ref’d). However, we have held that the requirement is also met

when the child is present at the courthouse and made available to the defendant. Soto v. State, 736

S.W.2d 823, 827 (Tex. App.—San Antonio 1987, pet. ref’d); but see Rodriguez v. State, 802

S.W.2d 716, 721 (Tex. App.—San Antonio 1990) (holding that child was not available to testify

within the meaning of art. 38.072 where the child was at courthouse but could only communicate

through one-way closed-circuit television), aff’d as reformed, 819 S.W.2d 871 (Tex. Crim. App.

1991). None of these circumstances showing availability to testify are present in the record.

-8-
04-25-00684-CV

For these reasons, we decline to read a presumption of availability into section 104.006.

As the Department concedes, there was no evidence the child was available to testify in any

manner. We therefore conclude the Department, as proponent of the hearsay, did not show the

child was available to testify within the meaning of section 104.006.

1.4 Necessity Finding

When a child is unavailable to testify, the outcry testimony may nonetheless be admissible

if the court determines use of the statement in lieu of the child’s testimony is necessary to protect

the welfare of the child. TEX. FAM. CODE § 104.006(2).

The trial court heard testimony that both children experienced particularly severe trauma

as a result of sexual abuse and that R.L.C. acted out sexually explicit behaviors when questioned

about the abuse. The trial court could have reasonably concluded that forcing R.L.C. to testify

would re-traumatize her and would be contrary to her well-being. We cannot say the trial court

abused its discretion by admitting the testimony and impliedly finding use of the outcry statement

in lieu of live testimony was necessary to protect R.L.C.’s welfare.

* * *

We conclude the trial court did not err by admitting the two outcry statements and overrule

Father’s sole issue on appeal. The trial court’s judgment is affirmed.

Velia J. Meza, Justice

-9-