By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Court can commit to TYC without motion to
modify if it still has jurisdiction over the disposition (99-4-07).
On August 26, 1999, the Austin Court of Appeals held that when the juvenile
court placed the respondent on probation and scheduled a further hearing to
consider the imposition of special conditions and the child violated probation
before the hearing date, that the court could commit the child to the TYC
without a motion to modify disposition having been filed.
99-4-07. In the Matter of B.N., UNPUBLISHED, No. 03-98-00575-CV, 1999 WL 645004,
1999 Tex.App.Lexis ___ (Tex.App.—Austin 8/26/99)[Texas Juvenile Law 217 (4th
Edition 1996)].
Facts: The Travis County district court, sitting as a juvenile court, found that
appellant B.N. had engaged in delinquent conduct and committed him to the Texas
Youth Commission (TYC) for an indeterminate period of time, not to exceed his
attaining twenty-one years of age. Tex.Fam.Code Ann. § 54.04(i) (West 1996)
(Juvenile Justice Code).
B.N., fifteen years old at the time of the adjudication, lived with his mother
and older sister. His mother was unemployed and received disability payments.
She had attempted suicide and had a criminal record for welfare fraud and moving
vehicle violations. B.N.'s father and mother were never married. His father
resides in Austin and he and B.N. occasionally visit.
By the time of this proceeding, B.N. had had seventeen prior referrals to the
juvenile system, dating back to August 1996. All of these prior referrals were
adjusted, dismissed, or otherwise handled without adjudication, except an
offense of evading arrest for which he was placed on probation for six months in
March 1998. B.N. was a gang member, associating with individuals having a
history with the Travis County Juvenile Court, and was a substance abuser. He
had been unfavorably discharged twice from the "Southwest Key" day
reporting program. B.N. was removed from school in the ninth grade in April 1998
for truancy and assigned
to an alternative learning center.
For the next several months during 1998, B.N. had several encounters with the
juvenile justice system. In April, he was detained for failing to attend the
alternative learning center. A warrant was issued on July 8 for failing to
follow probation rules. On July 14, he was detained for the offenses leading to
this adjudication. On July 21, the State filed an original petition alleging
delinquent conduct, specifically: criminal mischief, theft, unauthorized use of
a motor vehicle and two counts of escape. Tex. Penal Code Ann. §§ 28.03,
31.03, 31.07, 38.06 (West 1994 & Supp.1999). A second order of detention was
issued July 22. B.N. was released approximately two weeks later. On August 3, he
was again detained for probation violations. On August 7, the State filed an
amended petition adding a count of burglary. During the August 19 adjudication,
B.N. pleaded true to the allegation of the unauthorized use of a motor vehicle.
The state waived the theft allegation and one of the escape allegations. The
court heard evidence on the criminal mischief allegation and found it to be true
as well.
The court held a disposition hearing on August 26, 1998. The court placed B.N.
on intensive supervision probation (ISP) in the custody of his mother for one
year. The court set a further hearing for September 23 to determine if the
Southwest Key day reporting program should be added to his probation terms and
to determine whether restitution was appropriate.
On September 8, 1998, B.N. was detained for violating terms of probation by
violating his curfew and by re-offending. On September 14, the court vacated its
disposition order of August 26. On September 21, the court held a second
disposition hearing. B.N. appeared with his parents and his attorney. B.N.'s
probation officer testified concerning B.N.'s arrest for burglary of a motor
vehicle. He had been detained after B.N.'s curfew, a term of his probation. The
probation officer testified to B.N.'s poor behavior while in detention,
including an escape attempt. The probation officer testified that the
administrative director of the Austin Recovery Center reported to him that B.N.
had done a preliminary intake but failed to report the next day as scheduled. At
the end of the hearing, the court committed B.N. to the TYC for an indeterminate
sentence.
On appeal, B.N. raises three issues: (1) the evidence does not support the trial
court's decision to commit him to the TYC; (2) the evidence is insufficient to
show that reasonable efforts had been made to prevent or eliminate the need to
remove B.N. from home; (3) the trial court denied B.N.'s due process rights by
its modification procedure. We will begin with the third issue because B.N.
essentially challenges the power of the trial court to render its final
dispositional order.
Held: Affirmed.
Opinion Text: Due Process
B.N. contends that the trial court followed improper procedures in rendering its
September 21 order. He complains that no motion to modify disposition had been
filed. Therefore, he could not have received proper notice of the hearing on the
modification of his disposition: "[T]he only indication in the record
regarding the mechanism for bringing the child back before the court is a
notation on the handwritten civil docket sheet and a statement by the juvenile
court referee at the September 21, 1998 disposition hearing that the disposition
order had been vacated on September 14, 1998." B.N. states that as there is
no record of the proceedings of September 14, the content of the court's notice
to B.N. regarding modification is unknown. [FN2]
FN2. However, it is B.N.'s burden to request a record sufficient to show error.
See Kent v. State, 982 S.W.2d 639, 641 (Tex.App.--Amarillo 1998, pet ref'd
untimely filed).
B.N. misunderstands the nature of the proceedings. The August 26th order already
had scheduled a hearing to make final the terms of B.N.'s probation. In the
interim, B.N. committed another offense and also violated his probation by
committing an offense after his curfew. Even if the August 26th order were a
final one, the trial court, while retaining plenary power, reconsidered its
original disposition and ordered a new disposition. This was not a modification
proceeding. [FN3] Further, the order placing B.N. on probation warns that
violation of the terms of probation can result in detention and further
proceedings.
FN3. Under section 54.05 of the Juvenile Justice Code, any disposition other
than commitment to the TYC may be modified until the child reaches the age of
eighteen or the child is discharged from the disposition. A motion to modify may
be brought by various parties, including the court itself. See Juvenile Justice
Code § 54.05(d).
To the degree that B.N. complains about notice, the record reflects that B.N.,
along with his parents and counsel, appeared at the September 21 disposition
hearing. When a child's attorney appears, does not file a motion for
continuance, and the child and parents are present and fully advised by the
court as to the issues before the court, reasonable notice is presumed. See In
re D.E.P., 512 S.W.2d 789, 791 (Tex.Civ.App.--Houston [14th Dist.] 1974, no
writ). B.N. has not demonstrated a lack of proper notice.
The trial court acted within its power when it rendered its final order of
disposition. B.N. had notice adequate to satisfy any due process concerns. We
overrule issue three.
Evidence to Support Commitment to TYC
In issue one, B.N. complains that the evidence does not support the trial
court's decision to commit B.N. to the TYC. We disagree.
A juvenile judge has broad discretion to determine a suitable disposition for a
child adjudicated as having engaged in delinquent conduct. See In re J.R., 907
S.W.2d 107, 110 (Tex.App.--Austin 1995, no writ). Absent an abuse of discretion,
a juvenile court's dispositional findings should not be disturbed. See In re L.G.,
728 S.W.2d 939, 944-45 (Tex.App.--Austin 1987, writ ref'd n.r.e.). The test for
abuse of discretion is whether the court acted reasonably, that is, with
reference to guiding rules and principles. See In re T.A.F., 977 S.W.2d 386, 387
(Tex.App.--San Antonio 1998, no pet.)
To commit a child to the TYC, the court must find that the child is in need of
rehabilitation or that the protection of the child or the public requires that a
disposition be made. Juvenile Justice Code § 54.04(c). To commit a child to TYC,
the court determines that it is in the child's best interests to be placed
outside the child's home, that reasonable efforts were made to retain the child
in his or her home, and that the child in the home cannot be provided the level
of support and supervision necessary to maintain the child there. Id. §
54.04(i). Having adjudicated B.N. to have engaged in delinquent conduct, the
court found he needed rehabilitation and the protection of the public required
that a disposition be made. After determining the necessary factors under
section 54.04(i) were met, the court went on to find that B.N. would not accept
parental supervision, had demonstrated a disregard for authority, and that local
resources were not adequate either to meet B.N.'s needs or to protect the
public.
The record supports the court's exercise of its discretion. Within the two- year
period before this adjudication, B.N. had seventeen juvenile referrals, most of
which were attempts by the probation department to work with B.N. outside of
court. He was on probation when he committed the offenses that resulted in this
adjudication. As soon as he was placed on ISP and released from detention, he
broke curfew, violating one term of his probation and re- offended, breaking
another term. He tried to escape from the subsequent detention. He was a gang
member and substance abuser who failed to perform court-ordered community
service and attend court-ordered programs. During his first probation he left
his mother's residence for several weeks without permission or accounting for
his whereabouts.
B.N.'s probation officer concluded that B.N. "will choose to behave as he
pleases," "leaves the house at his own discretion," and "disregard[s]
directions from his mother." B.N.'s behavior demonstrated that probation as
an alternative had failed. In essence, whenever he was released from detention,
he re-offended. The court did not abuse its discretion in concluding that the
highly structured environment of TYC offered the better alternative for B.N.'s
rehabilitation and the protection of the public. We overrule issue one.
Efforts to Retain in Home
In issue two, B.N. complains that the evidence was insufficient to show that
reasonable efforts had been made to prevent or eliminate the need to remove him
from the home. The gravamen of his complaint is that, although remaining with
his mother might have been unworkable, inadequate efforts were made to explore
the possibility of placement with his father. B.N.'s appellate complaint is
based on a comment by his trial counsel that he thought that B.N.'s father would
give B.N. a chance on probation at his house.
We note that B.N.'s father, David Meredith, was present at the last disposition
hearing and offered no testimony about such an offer. Meredith and B.N.'s mother
were never married. There is no evidence that Meredith ever took formal steps to
declare his paternity and pay child support. There is no evidence that Meredith
had ever attempted to gain custody, or ever requested that any evaluation of his
home be made to determine suitability for placement of B.N. There is no evidence
of any relationship between B.N. and Meredith other than occasional casual
visits. In short, B.N. complains that the juvenile court did not explore the
possibility of placing him in a new home.
The juvenile court need not investigate every possible alternative to TYC
commitment. See Echols v. State, 481 S.W.2d 160, 161-62 (Tex.Civ.App.-- Houston
[14th Dist.] 1972, no writ). The idea of placing B.N. with Meredith was a
passing remark by B.N.'s trial counsel. There is no evidence in the record that
would have necessitated the trial court exploring placement with Meredith. We
overrule issue two.
Conclusion
We have concluded that the trial court properly rendered its dispositional order
of September 21, 1998 and that the court did not abuse its discretion in
committing B.N. to the TYC. Accordingly, having overruled all of B.N.'s issues
presented, we affirm the trial-court order.
[Editor’s Comment: This opinion’s conclusion that no motion to modify was
needed is highly questionable. Prior cases, discussed in Texas Juvenile Law at
216-17, indicate that the procedures of Section 54.05 cannot be avoided by
viewing the TYC commitment as something other than a modification of
disposition.]