In the Interest of E.A.K. (192 S.W.3d 133, 2006)

MAJORITY OPINION

ADELE HEDGES, Chief Justice.

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 con-servatorship 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 (“CPS”) caseworker. Stacey and LaChance also made formal written statements to the Arlington Police Department. 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 Mends. 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 (“DFPS”). 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. 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. 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. Musto-fa denied the allegations in his own testimony.

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 aceor-dance 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 “at 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. 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. “‘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.-Dallas 2004, no pet.); Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 716 (Tex.App.-Austin 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.-Houston [14th Dist.] 2000, pet. denied) (stating that to preserve error on objection, party must suffer adverse ruling).

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 “Contract Social Worker.” The document also contains a signature block for Virginia Lamb, who is listed as a “TDPRS Supervisor.” 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.-Houston [14th Dist.] 1999, no pet.); Montoya v. State, 832 S.W.2d 138, 141 (Tex.App.-Fort 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.-Texarkana 2004, no pet.); In re J.G., 112 S.W.3d 256, 262 (Tex.App.-Corpus 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, Musto-fa’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.

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. See Tex.R. Evid. 801(d); C & H Nationwide, Inc. v. Thompson, 810 S.W.2d 259, 268 (Tex.App.-Houston [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.

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) (