in the Matter of W.Z. ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00305-CV
IN THE MATTER OF W.Z.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-105051-17
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MEMORANDUM OPINION 1
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I. Introduction
A jury found that Appellant W.Z., a juvenile, engaged in delinquent conduct
by committing the state jail felony offense of theft in violation of penal code section
31.03(e)(4)(B), 2 and the trial court adjudicated him accordingly. At W.Z.’s
1
See Tex. R. App. P. 47.4.
2
Theft occurs when a person unlawfully appropriates property with the intent
to deprive the owner thereof; it is a state jail felony, as pertinent here, when the
property, regardless of value, is “stolen from the person of another.” See Tex.
Penal Code Ann. § 31.03(a), (e)(4)(B) (West Supp. 2017). At W.Z.’s August 2017
delinquency trial, the complainant and two Arlington police officers testified about
W.Z.’s May 15, 2017 theft of the complainant’s cell phone, and seventeen-year-
subsequent disposition hearing, W.Z. asked to be returned to his family “if the
Court believe[d] that he c[ould] get the care and level of support and supervision
that he need[ed] out on probation” or, if not, then to be placed in an out-of-state
treatment facility. The trial court ordered the second option.
In a single issue, W.Z. now argues that the trial court abused its discretion
by committing him to the out-of-state treatment facility because the evidence is
legally and factually insufficient to support the trial court’s findings under family
code section 54.04(i). We affirm.
II. Section 54.04(i) Findings
The trial court made the following findings in its order changing W.Z.’s
custody, care, and control to the Glen Mills Schools in Pennsylvania:
(1) reasonable efforts have been made to prevent or eliminate the need for W.Z.
to be moved from his home and to make it possible for him to return to his home;
(2) W.Z., in his home, cannot be provided the quality of care and the level of
support and supervision that he needs to meet the conditions of probation; and
(3) W.Z.’s best interest will be served by placing him outside of his home. 3 See
Tex. Fam. Code Ann. § 54.04(i)(1)(A)–(C) (West Supp. 2017). W.Z. complains
old W.Z. stipulated to his mother’s custody and address and his age (sixteen) at
the time of the theft.
3
In its order, the trial court also found that the best interest of the community
would be served by placing W.Z. outside of his home. In an addendum to the
change of custody order, the trial court found that placing W.Z. at the Glen Mills
Schools, outside of Texas, would not produce undue hardship.
2
that the evidence is legally and factually insufficient to support these findings such
that the trial court abused its discretion by committing him to Glen Mills.
The State responds that W.Z. requested commitment to Glen Mills if the trial
court decided that he should be placed outside of his home and that ample
evidence supports the trial court’s residential placement decision.
A. Standards of Review
A trial court has broad discretion to determine a suitable disposition for a
child who has been adjudicated as having engaged in delinquent conduct. In re
C.C.B., No. 02-08-00379-CV, 2009 WL 2972912, at *3 (Tex. App.—Fort Worth
Sept. 17, 2009, no pet.) (mem. op.) (citing In re H.G., 993 S.W.2d 211, 213 (Tex.
App.—San Antonio 1999, no pet.)). An abuse of discretion occurs when the trial
court acts unreasonably or arbitrarily without reference to any guiding rules or
principles, but it does not abuse its discretion simply by basing its decision on
conflicting evidence. See id.; In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.—Fort
Worth 2002, no pet.). And we will not find an abuse of discretion as long as some
evidence of substantive and probative character exists to support the trial court’s
decision. C.J.H., 79 S.W.3d at 702. In conducting our review, we engage in a two-
pronged analysis: (1) Was there sufficient information upon which to exercise
discretion, and (2) did the juvenile court err in its application of discretion? C.C.B.,
2009 WL 2972912, at *3; see also In re C.C., No. 02-17-00216-CV, 2018 WL
1865804, at *3 (Tex. App.—Fort Worth Apr. 19, 2018, no pet.) (mem. op.).
3
We apply the civil standards of review to W.Z.’s complaints about the
sufficiency of the evidence. See In re D.M., No. 02-17-00059-CV, 2018 WL
1630704, at *5 (Tex. App.—Fort Worth Apr. 5, 2018, no pet.) (mem. op.). When
determining whether there is legally sufficient evidence to support the finding under
review, we consider evidence favorable to the finding if a reasonable factfinder
could and disregard evidence contrary to the finding unless a reasonable factfinder
could not. In re M.E., No. 02-14-00051-CV, 2014 WL 7334990, at *2 (Tex. App.—
Fort Worth Dec. 23, 2014, no pet.) (mem. op.). Anything more than a scintilla of
evidence supporting a finding renders the evidence legally sufficient. D.M., 2018
WL 1630704, at *5.
When reviewing an argument that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the answer should be set aside and
a new trial ordered. Id. at *6 (citing M.E., 2014 WL 7334990, at *2; C.J.H., 79
S.W.3d at 703).
B. Evidence
The trial court admitted into evidence W.Z.’s social history by the juvenile
probation department, including his psychological evaluations—the most recent of
which was from August 2016—a discharge summary, and a placement summary.
4
The trial court also heard testimony from W.Z.,4 W.Z.’s mother, W.Z.’s supervising
probation officer Peggy Joe Campos, 5 and Tarrant County Juvenile Services
placement supervisor Debbie Spoonts. 6
The evidence at the disposition hearing reflected that W.Z. was from an
economically disadvantaged single-parent household 7 in which English was not
the primary language and that his IQ was on the “low end of the average range,” 8
4
W.Z. testified that he understood that the trial court was going to decide
whether he would go to prison, to the Texas Juvenile Justice Department (TJJD),
to a placement outside of his home, or back to his mother’s home. The disposition
hearing took place on September 11, 2017, which was W.Z.’s sixth appearance
before the juvenile court. W.Z. was fourteen when he received his first referral.
5
Campos had been a Tarrant County juvenile probation officer for nine-and-
a-half years at the time of the disposition hearing and had been W.Z.’s supervising
probation officer since October 2015.
6
Spoonts had been with the Tarrant County juvenile department for twenty-
nine years and prepared the placement summary recommending that W.Z. be sent
to Glen Mills.
7
When W.Z. was one year old, his father was incarcerated for assaulting
W.Z.’s mother and attempting to kidnap W.Z. He was deported when W.Z. was
around six years old. W.Z.’s mother did not have a car; she walked to work and
one of her friends drove her to court when her daughter was unavailable to drive
her.
8
According to W.Z.’s 2016 psychological evaluation, his academic
achievement grade level was that of second or third grade in reading but fourth
grade in math. W.Z., who was seventeen at the time of the disposition hearing,
was in the ninth grade because of his history of truancy and refusal to attend
school. His 2016 psychological evaluation noted that he also appeared to be
below average in height and weight and mildly depressed “due to his ongoing poor
decision-making” and poor impulse control. It was also noted that he did not
appear to be trying his hardest during the academic testing.
5
although some of his academic underachievement was attributed to his lack of
proficiency in English as a second language and some was attributed to his
excessive truancy and substance abuse.
Child Protective Services became involved in W.Z.’s life in 2010 when the
agency received an allegation that then-nine-year-old W.Z.’s older half-brother C.,
a member of the Sur 13 gang, had tried to carve “13” into W.Z.’s arm. 9 W.Z. looked
up to C., who had a history with the juvenile probation department. C. gave drugs
to W.Z. when W.Z. was around nine or ten years old. According to W.Z.’s mother,
C. was not around much “because he was locked up often.”
As a teenager, W.Z. began coming and going as he pleased, was verbally
aggressive with his mother, refused to obey her rules, and used drugs like he had
seen C. do. 10 According to Campos, W.Z.’s mother, who at times worked more
than one job, had never shown an ability to control W.Z.’s behavior. Although
W.Z.’s mother had seven children, her grandson and W.Z. were the only ones who
lived with her. W.Z.’s home was described as “very chaotic” due to the lack of
supervision, and his social history described his mother’s parenting skills as
inadequate. 11
9
According to W.Z.’s social history, C. only got as far as carving a “1.”
10
W.Z. testified that when he got to junior high, he graduated from “the small
drugs to the big drugs.”
11
One portion of the social history stated that W.Z.’s mother “lacks the
parenting skills and ability to parent youth. Mother works hard to get others to
parent her child.” Another portion stated, “Historically, mother calls PO constantly
6
W.Z.’s mother said that W.Z. was a good child at home but not when he
went “out in the streets,” where he paid more attention to his friends than to what
she told him to do. W.Z.’s mother said that she had told him that she did not like
for him to hang out with those friends and that he listened sometimes.
W.Z. started using drugs in 2014, the same year that his offense history
began. 12 He frequently ran away from home and was placed on an electronic
monitor on four occasions from September 2015 to March 2017 but cut it off each
time only days later. W.Z.’s mother agreed that if W.Z. decided to run away, he
would do it, regardless of what she or anyone else told him to do. His social history
reflected that despite the Tarrant County Juvenile Department’s efforts, W.Z.’s
“non-compliance on supervision makes continued supervision difficult. [W.Z.] has
demonstrated both in detention and while in residential treatment at G4S in
Brownwood twice that he excels in a structured environment.”
W.Z. tested positive for at least one drug—marijuana, methamphetamine,
cocaine, opiates, or benzodiazepine 13—every time he was tested, and even after
wanting the department to give youth consequences and place her child in a
secure facility. Mother has had the expectation that JPD (or other agency) should
be parenting her child.”
12
Beginning in July 2014, W.Z. was charged with evading arrest or detention
and criminal trespass, and from 2014 to 2016, he acquired charges for resisting
arrest, interference with public duties, running away, and failure to identify, in
addition to frequently violating court orders.
13
Xanax is a common brand name of benzodiazepine.
7
completing two residential drug treatment programs, he relapsed within two weeks
to a month of his return home. 14 W.Z. had used marijuana, heroin, “crystal meth,”
and cocaine over the years, but he said that the last time he used the harder drugs
(heroin, methamphetamine, and cocaine) 15 was before he turned fifteen.
As of May 16, 2017, the day after the cell phone theft, 16 W.Z. had been
confined in the Tarrant County Detention Center. His participation in the Tarrant
County Youth Recovery drug program ended on June 5, 2017, with a
recommendation of an “involuntary long-term substance abuse treatment facility”
due to his prior lack of success in voluntary treatment programs. According to the
discharge summary recommendation, W.Z. “would benefit from a safe, controlled,
and monitored environment where his actions and behaviors could be more closely
modified and mentored” and “a structured living environment where his focus could
be directed and redirected more successfully.” 17
14
W.Z. was placed in G4S, a residential substance abuse treatment facility
in Brownwood, Texas, from February 2016 to August 2016 but tested positive for
marijuana and cocaine two weeks after his release. He went back to G4S from
September 15, 2016, to January 10, 2017, but tested positive for marijuana and
benzodiazepine within a month after his release. W.Z. acknowledged that when
he was fifteen years old, one of his friends had died from a heroin overdose but
that this had not stopped him from using drugs.
15
W.Z. said that he did not consider cocaine to be a “hard” drug.
16
W.Z. testified that he did not know why he had stolen the cell phone but
denied that he had planned to sell it for drugs or to give it to a friend who was
affiliated with Sur 13.
17
W.Z. said that he had failed on probation because of drugs and his peers,
stating, “[W]hen people text me it would be hard to say no to, like, to go there and
8
Campos testified that a placement was available to W.Z. at Glen Mills in
Pennsylvania. Spoonts testified that Glen Mills was not a locked-down facility,
even though W.Z. had successfully finished secure programs, because the juvenile
department felt that Pennsylvania was far enough away and because “the amount
of structure” in the program might be able to meet W.Z.’s needs better than another
secure program. Spoonts said that the department felt like the most appropriate
program in which to place W.Z. was Glen Mills, although she acknowledged that
children in an unsecure placement in Arizona had run away. AMI Rio Grande,
another program, had declined to consider W.Z. based on his runaway history.
Spoonts stated that the Glen Mills program usually lasted around a year, but
because W.Z. would turn eighteen in less than a year, he could only stay there
nine to ten months, until the day before his eighteenth birthday. Spoonts conceded
that the Glen Mills program usually could not be completed in nine to ten months
but said that it was possible to finish in less than nine months because the
department had had a client who had done so.
Spoonts added that there would be a substance abuse component to Glen
Mills that W.Z. would be enrolled in, but “[i]t’s not going to be substance abuse
treatment like going to rehab.” Glen Mills mainly had a very strong education
smoke with them.” He successfully completed G4S twice but lapsed back into drug
use once returned to his mother because when he got his phone back, he would
receive constant messages from his friends “to come and smoke with them,” and
it was hard to resist their peer pressure.
9
program, which W.Z. needed because he was “really behind in his education. His
skills are at a very low level, and . . . [Glen Mills had] about 40 vocations, so he
could get some job training [and] . . . could go all the way to get his diploma or his
GED.”
W.Z.’s mother wanted W.Z. to be placed in Pennsylvania because she
wanted him to get the help that he needed, to get his high school education or a
GED, and to overcome his drug problems.
W.Z. testified that he wanted to get his GED or high school diploma and to
start working. W.Z. stated, “If the judge sends me to Pennsylvania I’m going to
ask for all the help that I need, for me to get my GED and a trade for a job, and so
when I get out of placement, I can apply for a company and work and get my GED.”
He noted that most of his former drug-using friends were “in jail or prison.” W.Z.
told the trial court that he wanted to develop skills so that he could get a job and
help his mother and that he wanted to get help with his drug problem; if the trial
court sent him to Pennsylvania, he knew that he would not be bothered by his old
friends “because it’s far away from home.”
C. The Trial Court’s Ruling
The trial court observed that it had been proven “beyond a shadow of a
doubt” that the resources available in the community while W.Z. lived at home were
“clearly not sufficient for [W.Z.] to get successfully through a term of probation,”
and based on the evidence set out above, we agree with the trial court’s
10
assessment. 18 Notwithstanding many opportunities to comply with his probation
requirements, W.Z. continued to use drugs, remove his electronic monitor, and
commit offenses, and no one contradicted the evidence that W.Z.’s mother could
not parent him effectively. Accordingly, we overrule W.Z.’s argument that the
evidence is insufficient to support the trial court’s finding that he could not be
provided with the quality of care and level of support and supervision in his home
needed to meet the conditions of probation.
We likewise agree with the trial court’s finding that reasonable efforts had
been made to prevent or eliminate the need for W.Z. to be moved from his home
and to make it possible for him to return home, particularly considering his two
previous residential stays for drug treatment and four different opportunities on an
electronic monitor. In light of the evidence above and W.Z.’s relapse rate into
negative habits and drug use when in his unstructured home environment and
around negative peers, the trial court’s only clear options were either to send W.Z.
18
The trial court ruminated as follows at the hearing,
Now the dilemma is what on earth to do with you because I
have an obligation to protect this community, which I live in, from you.
I also have to try to figure out what on earth the juvenile probation
department has left for it to do for you because we’ve tried everything.
We’ve tried -- I mean I personally allowed you [to] get a GED. I don’t
even know if you remember that, but you were in my court and I was
hearing the same arguments from you that school wasn’t your thing,
and so I ordered for you to go get your GED through JJAEP. Do you
remember that?
W.Z. acknowledged that he did recall and said that he had failed the test.
11
out of state to Glen Mills—which W.Z., his mother, and the probation department
all agreed would be in his best interest—or to confine him to TJJD, as argued by
the prosecutor. 19 Accordingly, the trial court did not abuse its discretion by finding
that W.Z.’s best interest would be served by placing him outside of his home. We
overrule W.Z.’s sole issue.
III. Conclusion
Having overruled W.Z.’s sole issue, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
CHIEF JUSTICE
PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.
DELIVERED: August 9, 2018
19
The State argued that W.Z. should be placed in TJJD because Glen Mills
was not a secure, lockdown facility or drug placement program and because TJJD
would be able to keep him for longer—until he turned nineteen.
12