in the Matter of G. W. ( 2013 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-11-00114-CV
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Appeal from the
IN THE MATTER OF G.W. '
County Court at Law Number One
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of Denton County, Texas
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' (TC# JV-2009-00918)
OPINION
Appellant, G.W., appeals the trial court’s order of adjudication and commitment to the
Texas Youth Commission (TYC).1 We affirm.
BACKGROUND
The juvenile court adjudicated Appellant delinquent for causing injury to a child younger
than fourteen years of age, a felony of the first degree. See TEX. PENAL CODE ANN. § 22.04
(West 2011). After a disposition hearing, the trial court thereafter placed Appellant on
intensive-supervision probation and in the custody of his mother who resided in Illinois.
Appellant was permitted to be supervised by a juvenile probation officer in Illinois after the filing
of an interstate compact. The terms and conditions of Appellant’s probation required that he not
associate in any way with the victim, complete a sex-offender treatment program, and obtain the
juvenile court’s permission prior to moving or spending the night outside of his mother’s home.
After Appellant and his mother moved to Arkansas without requesting the court’s
permission, the court amended the terms of Appellant’s probation and again required that
Appellant reside with his mother in Arkansas and obtain the court’s permission prior to moving or
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As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the
precedent of that court. TEX. R. APP. P. 41.3.
spending the night outside of his mother’s home. Thereafter, an Arkansas probation officer
notified the Denton Country Juvenile Probation Office that Appellant and his mother had returned
to Illinois without the court’s permission. Citing Appellant’s failure to obtain the court’s
permission before moving and failure to complete sex-offender treatment program, and contact
with the victim’s family as required by the terms and conditions of Appellant’s probation, the State
filed a motion to modify the disposition of the case. After being located in Minnesota, Appellant
filed a stipulation of evidence wherein he admitted that he had violated the terms and conditions of
his probation by being absent from his mother’s home without the court’s consent, by failing to
comply with sex-offender treatment requirements, and by attempting via social media to contact
the mother of the victim in the underlying case. After conducting a modification hearing, the trial
court committed Appellant to TYC. Appellant now asserts that the trial court abused its
discretion in committing him to TYC.
DISCUSSION
Standard of Review
A trial court’s modification of disposition is governed by Section 54.05 of the Texas
Family Code. See TEX. FAM. CODE ANN. § 54.05 (West 2008). When a juvenile’s prior
disposition is based on a finding that the juvenile engaged in a felony offense, as here, the trial
court may modify the disposition and commit the juvenile to TYC if the court finds by a
preponderance of the evidence that the juvenile violated a reasonable and lawful order of the court.
See TEX. FAM. CODE ANN. § 54.05(f) (West 2008). A juvenile court that commits a child to
TYC is required to recite in its order a determination that: (1) it is in the child’s best interest to be
placed outside the child’s home; (2) reasonable efforts were made to prevent or eliminate the need
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for the child’s removal from the child’s home and to make it possible for the child to return home;
and (3) the child, in the child’s home, cannot be provided the quality of care and the level of
support and supervision that the child needs to meet the conditions of probation. See TEX. FAM.
CODE ANN. § 54.05(m) (West 2008).
Juvenile courts are vested with a great amount of discretion in determining the suitable
disposition of children who have been found to have engaged in delinquent conduct, especially in
hearings to modify disposition. In re D.R.A., 47 S.W.3d 813, 815 (Tex.App. – Fort Worth 2001,
no pet.). Consequently, we review an order committing a juvenile to the TYC under an
abuse-of-discretion standard. In re J.P., 136 S.W.3d 629, 632 (Tex. 2004). A trial court abuses
its discretion when it acts arbitrarily or unreasonably or without reference to guiding rules or
principles. In re D.R., 193 S.W.3d 924, 924 (Tex.App. – Dallas 2006, no pet.).
No abuse of discretion occurs where a trial court bases its decisions on conflicting
evidence. In re B.N.F., 120 S.W.3d 873, 877 (Tex.App. – Fort Worth 2003, no pet.). Nor does
an abuse of discretion occur as long as some evidence of substantive and probative character exists
to support the trial court’s decision. Id.
In reviewing the legal sufficiency of disposition orders, we consider “only the evidence
and inferences tending to support the findings under attack and set aside the judgment only if there
is no evidence of probative force to support the findings.” In re M.D.H., 139 S.W.3d 315, 317
(Tex.App. – Fort Worth 2004, pet. denied). In considering the factual sufficiency of a trial court’s
disposition order, we consider and weigh all of the evidence and set aside the judgment only if the
finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.
Id.
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Analysis
Appellant contends the trial court abused its discretion because the evidence was
insufficient to support a determination that commitment to TYC was in his best interest.
Appellant specifically asserts that there was no evidence that he could receive appropriate
sex-offender counseling at TYC and that the evidence presented during the modification hearing
indicated that members of Appellant’s family would be unable to participate in such programs
because they did not reside in Texas.
At the modification-of-disposition hearing, the trial court heard testimony from Appellant,
his mother, and his probation officer Appellant’s probation officer testified regarding
Appellant’s unauthorized change of residence, the lack of sex-offender treatment programs in the
area to which Appellant had moved, Appellant’s failure to attend school and related violations, and
Appellant’s contact with his victim’s mother. The probation officer also testified that Appellant
had not participated in sex-offender counseling as required by the terms of his probation.
During the hearing to modify disposition, Appellant’s mother admitted that she had moved
Appellant without prior permission of the trial court, stated that she had moved Appellant due to
threats made by relatives of Appellant’s father and explained that, as Appellant was only fourteen
years old, Appellant was required to move with her as she was the person responsible for deciding
to move. Appellant’s mother explained that she had moved to Minnesota due to the availability
of family support, and that she had found and scheduled appropriate counseling there for
Appellant. She also informed the trial court that she was not willing to move to Denton, Texas for
Appellant.
Appellant, who was fourteen years old at the time of the hearing, testified that he was first
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contacted by his victim’s mother who informed him that she did not want Appellant to contact his
father and explained that his violation of the “no contact” provision of his probation terms and
conditions had arisen from his response to the victim’s mother. Appellant also testified regarding
other alleged violations of his terms and conditions, and stated that, if permitted to remain on
probation, he was willing to cooperate with counseling and be proactive in advising his probation
officer of impending moves.
After considering Appellant’s social history and a psychological report indicating that
Appellant was amenable to counseling, and noting both that it preferred that Appellant had been
sent to a placement facility in Denton or a nearby county and that sending Appellant to TYC was
the last thing it wished to do, the trial court found that committing Appellant to TYC was in
Appellant’s best interest, that all reasonable efforts had been made to prevent or eliminate the need
for Appellant’s removal from his home and to make it possible for Appellant to return home, and
that he lacked adequate supervision and support at home.
The evidence is both legally and factually sufficient to support the trial court’s findings that
Appellant violated a reasonable and lawful court order and to support modification of the trial
court’s disposition. Because the trial court did not abuse its discretion in committing Appellant to
TYC, Appellant’s issue on appeal is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
GUADALUPE RIVERA, Justice
February 6, 2013
Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating
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