in the Matter of C.J. III ( 2009 )

Opinion issued July 2, 2009

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00771-CV

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IN THE MATTER OF C.J., Appellant

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On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 2006-11575

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MEMORANDUM OPINION  

Appellant, C.J., appeals from a judgment finding he is a juvenile delinquent and committing him to the Texas Youth Commission (TYC) for an indeterminate period, not to exceed the time when appellant becomes 21 years of age, or until discharged. In his sole issue on appeal, appellant challenges the legal and factual sufficiency of the evidence to support findings required for commitment to the TYC at a hearing to modify a disposition. See Tex. Fam. Code Ann.   § 54.05(m  )   (Vernon 2008). We conclude the evidence is legally and factually sufficient to support the trial court's findings and, therefore, affirm.  

Background    

     A  ppellant committed an assault   on May 5, 2006, while living at home. Two months after appellant's disposition hearing for the assault, appellant returned to court with the charge of unauthorized use of a motor vehicle. The court determined appellant engaged in delinquent conduct and ordered appellant to be placed on probation for sixteen months, until November 2007. While on probation, appellant was placed in the custody of several facilities. Appellant was first placed at the Burnett-Bayland Reception Center, but soon moved to the Delta Boot Camp. While on probation, appellant was charged with two assaults, including a third degree felony assault on a public servant at the boot camp. Having been charged with the two assaults that occurred while appellant was on probation, appellant was again returned to court. The court extended appellant's term of probation to August 1, 2010. The court granted custody back to appellant's mother on January 29, 2008. Less than two months after the court extended appellant's probation for the two assaults, appellant was again charged with a crime; this time the crime was possession of marijuana in a useable quantity of under two ounces. In light of appellant's violation of the rules of his probation, the State petitioned to modify appellant's disposition.

At the hearing to modify the disposition, the State introduced reports prepared by appellant's two probation officers and five mental health professionals. Appellant's most recent probation officer indicated that "given [appellant's] new offense, delinquent behavior, and disregard to his rules of probation, it appear[ed] that he [was] appropriate for a more structured environment . . . [and] qualified for commitment to the TYC." Appellant's former probation officer listed appellant's disciplinary problems while on probation, which included an attack by appellant on a fellow resident of the Harris County Detention Facility, appellant's refusal to follow instructions, appellant's instigation of two physical altercations, and appellant's refusal to attend school on three occasions.

The psychological screenings indicated a history of negative and violent behavior. Appellant admitted to beginning drug use in the seventh grade. After two psychiatric hospitalizations in 2006, appellant failed to take medication or attend doctor's appointments. Appellant suffered from depression, leading in the past to contemplated suicide, self-mutilation, and anger-management issues.   One psychiatric report further diagnosed appellant as having chronic risk for self-destructive and aggressive behavior. In addition to the assault on the boot camp instructor, appellant made violent threats at a second facility, Sandstone Health Care, and a third facility released him for not meeting admission criteria.   Furthermore, appellant described his unstable family environment, explaining that he was passed around among his mother, father, grandmother, and various aunts and uncles because "no one could handle [him]." Although appellant's parents attempted to live together in the same residence to   support appellant, appellant reported that his father spent much of his time and energy on his "new family."

Most of the psychiatric reports, including the most recent  ,   recommended placement in a structured facility. Of the two reports without this specific recommendation, one report proposed a residential treatment program with medication in 2006. The 2007 report proposed individual, group, and family therapy.

  Appellant introduced testimony of his improved behavior since his probation violation. Appellant's mother testified that she worked with appellant through community programs and supervised his attendance at school, commenting that he had "improved so much." Appellant's advocate noted that appellant was a respectful, great pupil, who attended all required classes, followed instructions, adhered to home rules, and completed chores. He conceded his unfamiliarity with appellant's history of offenses, however, as he only interacted with appellant for 49 days.   Following the evidentiary hearing,   the trial court modified appellant's prior disposition for assault, committing him to the TYC.  

Sufficiency of the Evidence

Appellant contends in his sole issue on appeal that the evidence is both legally and factually insufficient to support any of the requisite findings under section 54.05(m) and, therefore, the trial court abused its discretion in committing him to TYC. See Tex. Fam. Code Ann.   § 54.05(m  ).      The State responds that there is ample evidence supporting the trial court's findings.

A. Required Findings Under Section 54.05    

In order to commit a child to the TYC at a hearing to modify a disposition, the   juvenile   court must   find and state in its   modified disposition   order that   (1)   placement outside of the child's home is in the child's best interest,   (2)   reasonable efforts were made to prevent or eliminate the need for the child's removal from the home,   and (3)   the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation  .   Tex. Fam. Code Ann.   § 54.05(m  )  .          

B. Review of Juvenile Disposition  

Modifying a juvenile probation is a decision within the sound discretion of the trial court; such a decision can be reversed only on a finding that the trial court abused that discretion.   In re J.P., 136 S.W.3d 629, 632 (Tex. 2004); In re J.R.C., 236 S.W.3d 870, 875 (Tex. App.--Texarkana 2007, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably or without reference to guiding rules or principles. In re J.O., 247 S.W.3d 422, 424 (Tex. App.--Dallas 2008, no pet.); J.R.C., 236 S.W.3d at 875; In re T.E.G., 222 S.W.3d 677, 679 (Tex. App--Eastland 2007, no pet.).    Under an abuse of discretion standard, legal and factual sufficiency are relevant factors in assessing whether the trial court abused its discretion. In re C.G., 162 S.W.3d 448, 452 (Tex. App.--Dallas 2005, no pet.).

In reviewing the legal sufficiency review of a juvenile court disposition, an appellate court considers only the evidence and inferences tending to support the court's findings and sets aside the judgment only if there is no evidence of probative force to support the findings. C.G., 162 S.W.3d at 452; In re H.R.C., 153 S.W.3d 266, 269 (Tex. App.--El Paso 2004, no pet.)        ; In re C.J.H., 79 S.W.3d 698, 702-03 (Tex. App.--Fort Worth 2002, no pet.). We consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. In re A.T.M., 281 S.W.3d 67, 71 (Tex. App.--El Paso 2008, no pet.). Anything more than a scintilla of evidence is legally sufficient to support the finding. C.J.H., 79 S.W.3d at 703. In a factual sufficiency review of a juvenile court's disposition, we consider and weigh all of the evidence in the case, and set aside the judgment only if the finding is so against the great weight and preponderance of the evidence as to be clearly unjust. A.T.M., 281 S.W.3d at 71; C.G., 162 S.W.3d at 452; H.R.C., 153 S.W.3d at 269.

C. Sufficiency of the Evidence Analysis

Appellant contends the evidence is legally and factually insufficient to support the trial court's findings. He asserts that the testimony of his improved behavior and family dynamic show there is no basis upon which to find either that commitment to the TYC was in his best interest or that the care required for completing probation was lacking at home. Furthermore, appellant argues that reasonable efforts were not made to avoid removal from home; he contends that commitment to the TYC disrupted reasonable efforts that had begun working.

The record shows appellant committed the most recent violation of probation, the possession of marijuana, and evidence supports each of the required findings under section 54.05(m). See Tex. Fam. Code Ann.   § 54.05(m  )  . First,   the majority of experts recommended a structured facility for appellant, including his probation officer during the period immediately prior to the hearing to modify the disposition. This evidence supports a finding that a commitment to a structured facility, the TYC, is in appellant's best interest. Two probation officers and three psychiatric reports over the preceding two years recommended a structured facility. Only two psychiatric reports in 2006 and 2007 did not specifically recommend a structured facility for appellant. Moreover, the testimony of his mother and advocate only purported to demonstrate improvements in the three months prior to the hearing to modify the disposition. Although appellant's probation officer agreed that his behavior and family environment had improved, he concluded that appellant "does qualify for commitment" to the TYC. Although some evidence suggested appellant's behavior was recently improving, other evidence in the record showed a history of violation of criminal laws and an inability to rehabilitate in any of the facilities that are alternatives to the TYC. The record, therefore, supports the trial court's finding that commitment to the TYC is in appellant's best interest.

Second, the evidence shows numerous reasonable efforts to avoid removing appellant from his home. Section 54.05 allows a trial court to "decline third and fourth chances to a juvenile who has abused a second one." J.P., 136 S.W.3d at 633. While on probation, appellant committed three offenses, two violations of probation, and the most recent drug offense. Appellant cites to the most recent psychiatric evaluation to suggest he should not be sent to the TYC. However, appellant fails to cite the recommendation in the same report for placement in boot camp due to appellant's "need [for] more structure and supervision than he is currently receiving." Boot camp was already tried and failed as an alternative to an in-home remedy; appellant was expelled from boot camp for assaulting a public officer. The overwhelming weight of the evidence supports the finding that reasonable efforts were made to avoid removing appellant from his home.

Third, the evidence also supports a   lack of the quality of care and level of supervision in the home necessary to successful completion of probation.   Appellant committed numerous offenses while living at home. Three of appellant's offenses--his first assault, unauthorized use of motor vehicle, and possession of marijuana--all occurred while living at home under the supervision of his mother. Furthermore, appellant's own statements illustrate the instability of his family life. Although appellant's behavior had recently been improving while in the supervision of his family, the numerous law violations by appellant while in the supervision of his family support the trial court's determination that appellant cannot receive the care and supervision needed to successfully complete probation at home.

In re A.S., upon which appellant heavily relies, is distinguishable from the present case. 954 S.W.2d 855, 862-863 (Tex. App.--El Paso 1997, no pet.) (holding evidence legally and factually insufficient to support trial court's findings in juvenile disposition). The trial court in that case committed the juvenile to the TYC after his first offense. Id. at 863. The court of appeals held the only evidence to support the findings were that A.S. committed an offense, broke curfew to commit the offense, and was previously in a gang. Id. The record in A.S. showed that in-home probation was recommended, that A.S. had a strong support system within his family, and that A.S. had committed no prior offenses. Id. at 862-63. In contrast, the instant case involves a modification of a disposition. Appellant was committed to the TYC after his probation was previously twice extended and after appellant's fifth offense. Additionally, the large majority of reports recommend a structured facility, and the evidence demonstrates appellant's family has been unable to supervise him. A.S. does not compel us to find the evidence insufficient. See id.

Viewing the evidence in a light most favorable to the trial court's findings, we conclude the evidence is legally sufficient to support the trial court's findings. See In re J.D.P., 85 S.W.3d 420, 428-29 (Tex. App.--Fort Worth 2002, no pet.) (finding evidence of probative force existed supporting findings for commitment to TYC, where appellant had history of non-compliance, alternatives to commitment were already tried and failed, and multiple experts recommended commitment). Considering and weighing all of the evidence in the case, we conclude the trial court's findings are not so against the great weight and preponderance of the evidence as to be clearly unjust. See A.T.M., 281 S.W.3d at 72 (holding evidence factually sufficient to support findings required to modify disposition, despite testimony of recently improved behavior).

We hold the trial court did not abuse its discretion by modifying appellant's probation to commit appellant to TYC. W  e thus overrule appellant's sole issue.

Conclusion

   We affirm the judgment of the trial court  .

Elsa Alcala

Justice

Panel consists of Justices Jennings, Alcala, and Higley.