By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Evidence supports findings required to commit
respondent to TYC (00-1-05).
On December 8, 1999, the San Antonio Court of Appeals held that there was
sufficient evidence to support the findings required to be made by the juvenile
court when removing a child from home.
00-1-05. In the Matter of C.M.G., UNPUBLISHED, No. 04-99-00044-CV, 1999 WL
1125423, 1999 Tex.App.Lexis ____ (Tex.App.óSan Antonio 12/8/99)[Texas Juvenile
Law 179 (4th Edition 1996)].
Facts: C.M.G., appellant, appeals the juvenile court's order of disposition
committing her to a term of six years to the Texas Youth Commission ("TYC").
In its original petition, the State alleged C .M.G. engaged in delinquent
conduct, specifically, two counts of robbery with bodily injury. C.M.G. pled
true to both counts. In one issue on appeal, C.M.G. alleges the evidence was
insufficient to support the disposition removing C.M.G. from her home and
placing her in TYC. Based upon our review of the record, we hold that the trial
court did not abuse its discretion in committing C.M.G. to TYC.
Along with two co-offenders, fifteen year-old C.M.G. attacked two twelve year-
old girls from behind as they exited the San Antonio Sunken Gardens Theater.
C.M.G. and her companions repeatedly beat the girls to obtain jewelry and a
purse. C.M.G. admitted kicking one of the victims in the head. C.M.G. pled true
to two counts of robbery with bodily injury. At the adjudication and disposition
hearings, the assigned probation officer recommended that C.M.G. serve probation
until her eighteenth birthday, but remain in the custody of her father. The
State opposed probation. Citing the serious and violent nature of the offense,
and noting the inability of C.M.G.'s father to properly supervise his daughter,
the court committed C.M.G. to TYC until she reaches the age of twenty-one.
Held: Affirmed.
Opinion Text: A juvenile judge has broad discretion to determine the appropriate
disposition for a child who has been adjudicated as having engaged in delinquent
conduct. See In the Matter of A.S., 954 S.W.2d 855, 861 (Tex.App.--El Paso 1997,
no pet.). Absent an abuse of discretion, the reviewing court will not disturb
the juvenile court's determination. See In the Matter of K.L.C., 972 S.W.2d 203,
206 (Tex.App.--Beaumont 1998, no pet.); In the Matter of A.S., 954 S.W.2d at
861. An abuse of discretion occurs if the court acted arbitrarily or
unreasonably--that is, without reference to guiding rules and principles. See In
the Interest of S.B.C., 952 S.W.2d 15, 17 (Tex.App.--San Antonio 1997, no pet.).
The guiding principles for committing a child to TYC are provided in the Family
Code. The court is permitted to commit a child to TYC if: (1) it is in the
child's best interest to be placed outside the home; (2) reasonable efforts have
been taken to prevent or eliminate the need for the child's removal from home;
and (3) while in the home, the child cannot receive the quality of care and
level of support and supervision needed to meet the conditions of probation. See
Tex. Fam.Code Ann. ß 54.04(i) (Vernon 1996); In Re J.S., 993 S.W.2d 370, 372 (Tex.App.--San
Antonio 1999, no pet.). Thus we must review the evidence to determine if the
trial court acted without regard to these principles.
In a single issue, C.M.G. argues the evidence was legally and factually
insufficient to support the trial court's decision to remove her from her home.
Under an abuse of discretion standard, legal and factual sufficiency are
relevant factors in assessing whether the trial court abused its discretion.
Doyle v. Doyle, 955 S.W.2d 478, 481 (Tex.App.--Austin 1997, no pet.). C.M.G.
thus contends the trial court abused its discretion in committing her to TYC.
At the disposition hearing, the trial court heard from C.M.G.'s probation
officer, Brent Houdmann, C.M.G.'s father, and C.M.G. herself. No dispute exists
over whether the court's order contains the statutory language required by
Section 54.04 of the Texas Family Code. In compliance with the statute, the
court's order recites:
The Court finds it is in the child's best interest to be placed outside the
child's home; and finds that reasonable efforts were made to prevent or
eliminate the need for child's removal from the home and to make it possible to
return home; and further finds that 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.
See Tex. Fam.Code Ann. s 54.04(f) & (i) (Vernon 1996).
Adequacy of Home Supervision
The record raises some concerns about the adequacy of C.M.G.'s home supervision.
At the hearing, C.M.G.'s father exhibited a lack of knowledge regarding the
group of peers with whom C.M.G. associated. The State tendered as evidence the
probation officer's pre-disposition report which discussed instances of truancy
that contributed to C.M.G.'s failure in several classes, her past heroin use,
and her marijuana use even as recently as the weekend before the disposition
hearing. The State also expressed concern about the potential influence of
C.M.G.'s mother, who was in prison for drug-related offenses and probation
violations. C.M.G. was eager for her mother's scheduled release from prison in a
few months. Despite this evidence, Probation Officer Houdmann recommended among
other things, that C.M.G. serve a probationary period until her eighteenth
birthday and remain in her father's custody, attend substance abuse counseling
and therapy, and abide by a curfew of 8:00 p.m.
The trial court is not bound to follow the recommendations of the probation
officer. See Tex. Fam.Code Ann. ß 54.04(b)(trial court "may consider"
probation officer's written reports). We hold that the evidence presented is
both legally and factually sufficient to support the court's finding that C.M.G.
could not be provided in her home with the quality of care and level of support
and supervision needed to comply with the conditions of probation. See In the
Matter of K.L.C., 972 S.W.2d at 206.
Efforts to Prevent Removal from Home
C.M.G. contends the record is wholly silent as to any efforts that were made to
prevent the need for C.M.G.'s removal from her home. See Tex. Fam.Code Ann. ß
54.04(i)(2); In the Matter of K.L.C., 972 S.W.2d at 206 (holding that "the
trial court's finding that 'reasonable efforts were ' to seek alternatives to
TYC was unsupported by the record"). C.M.G. argues that the trial court
failed to investigate any means of punishment other than removal from the home.
We disagree. At the hearing, Probation Officer Houdmann indicated that C.M.G.
was never taken into custody following the incident, nor was she ever placed on
any type of electronic monitor. Rather, she was allowed to remain in her home
under the care and supervision of her father. The trial court was entitled to
consider this course of action as an attempt to keep C.M.G. in her home. The
court could also reasonably conclude, based on the evidence, that the attempt to
prevent removal from the home met with limited success. Since the date of the
offense, C.M.G. attended psychiatric appointments every two weeks and was
prescribed medication for anxiety and depression. However, in the nearly three
months from the date of the offense to the date of the hearing, C.M.G. continued
to smoke marijuana every other day, including just a few days prior to the
hearing. Additionally, C.M.G.'s truancy increased during this time period, and
she had not attended school at all for nearly two months. Under the
circumstances, the trial court was presented with a situation in which an
attempt had already been made to keep the child in the home, but the attempt was
unsuccessful. Accordingly, the trial court acted within its discretion when it
found that reasonable efforts were made to prevent or eliminate the need for
C.M.G.'s removal from the home.
Best Interest of the Child
The pre-disposition report entered into evidence describes C.M.G. as a follower,
not a leader, who needs to be kept from negative peers. In this regard her need
for additional supervision was noted. C.M.G.'s continued abuse of marijuana and
her on-going truancy while under the supervision of her father obviously are not
in her best interest. Further, allowing her to remain in her home would neither
protect her from the questionable influence of her mother, nor remove her from
the negative influence of peers at her school whom she blamed for her truancy.
Likewise, imposing an 8:00 p.m. curfew would not shield C.M.G. from the
influence of undesirable peers at school. Based on the evidence, the trial court
did not abuse its discretion in finding that commitment to TYC is in C.M.G.'s
best interest.
Accordingly, C.M.G.'s sole issue is overruled and the judgment of the trial
court is affirmed.