By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
TYC commitment supported by removal from
home findings (00-3-19)
On July 13, 2000, the El Paso Court of Appeals held that the juvenile
court's removal from home findings were supported by the evidence and that
commitment to TYC was lawful.
00-3-19. In the Matter of M.R., UNPUBLISHED, No. 08-00-00061-CV, 2000 WL 965052,
2000 Tex.App.Lexis ___ (Tex.App.--El Paso 7/13/00) [Texas Juvenile Law ... (4th
Ed. 1996)].
Facts: M.R. appeals from the juvenile court's judgment finding that M.R. engaged
in delinquent conduct and ordering that he be committed to the Texas Youth
Commission (TYC).
M.R. was born on December 1, 1982. His first referral to the Juvenile Probation
Department was in April 1996 at the age of thirteen for the offense of criminal
mischief. He was referred to a program designed to divert children from entering
the juvenile probationary system. The family met the conditions of that program
and that case was successfully closed. In March 1997, M.R. was adjudicated
delinquent for the offense of criminal trespass and was placed on supervised
probation until his eighteenth birthday. That probation was terminated
approximately fourteen months later. During this probationary term, M.R. was
monitored by the probation department while M.R. lived at home. Four months
after the completion of his first probationary term, M.R. was adjudicated
delinquent for the offense of theft over $500 and under $1,500, and he was
placed on electronic monitor probation until his eighteenth birthday. During
this second probationary period, M.R. lived at home with his parents. On January
26, 1999, after M.R. stipulated true to probation violations, the juvenile court
placed him on electronic monitor probation with the Providence Corporation's
Intensive Family Preservation Program. During this modified probationary term,
M.R. lived at home with his parents. M.R. and his family were also ordered to
participate in counseling services. M.R. appeared for his evaluation and three
meetings with the counselor, but he did not make himself available for case
management services. Less than one year later, on December 22, 1999, M.R.
pleaded true and was adjudicated for the present offense of public lewdness.
Specifically, he was charged with touching his four-year-old niece's breast. On
January 13, 2000, after hearing testimony from several witnesses at the
disposition hearing and after reviewing the pre-disposition report, the trial
court entered its judgment of commitment, finding that M.R. was in need of
rehabilitation, that the protection of the public required that disposition be
made, and ordering that M.R. be committed to TYC.
In his sole point on appeal, M.R. contends that the juvenile court abused its
discretion in ordering that M.R. be committed to a TYC facility because the
State did not present factually sufficient evidence to support the juvenile
court's order. M.R.'s factual insufficiency complaint is based on two grounds:
(1) that the probation officer's recommendation was not based on an accurate or
impartial assessment of M.R.'s characteristics or needs; and (2) that there were
viable alternatives to TYC. We address these arguments together.
Held: Affirmed.
Opinion Text: A juvenile court's findings are reviewable for factual
sufficiency. In reviewing factual sufficiency, we consider all the evidence, and
if the finding is so against the great weight and preponderance of the evidence
as to be manifestly unjust, we set aside the disposition order and remand the
case for a new disposition hearing.
Once the juvenile court has properly made the findings required by Section
54.04(i), its discretion to determine disposition attaches. In challenging a
court's order of disposition on appeal, the child must show that the trial court
abused its discretion in making its disposition. A juvenile court is vested with
broad discretion to determine the suitable disposition of a child adjudicated
delinquent, which we will not disturb unless the trial court acted without
reference to any guiding rules and principles, arbitrarily or unreasonably.
We begin with a review of all the evidence to determine whether there was
factually sufficient evidence to support the trial court's findings (1) that it
was in M.R.'s best interest to be placed outside the home, (2) that reasonable
efforts were made to prevent or eliminate the need for his removal from his
home, making it possible to return to his home, and (3) that M.R. could not be
provided the quality of care and level of support and supervision in the home to
meet the conditions of his probation.
Under Section 54.04(i) of the Texas Family Code, the juvenile court is permitted
to commit a child to TYC if:
(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 for the
child's removal from the home and to make it possible for the child to return to
the child's 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.
Although M.R. acknowledges that the juvenile court's disposition order recited
all of the requirements of Texas Family Code Section 54.04(i), M.R. contends
instead that the evidence supporting the reasons for M.R.'s commitment were
insufficient. As support, M.R. relies on portions of Section 51.01 of the Texas
Family Code, which outline some of the purposes of the Juvenile Justice Code: to
provide for the protection of the public and public safety, to provide care,
protection, and development of children, and to protect the welfare of the
community. [FN8] These purposes are to be achieved in a family environment
whenever possible, separating the child from the child's parents only when
necessary for the child's welfare or in the interest of public safety. Thus, M.R.
argues that in determining whether an out-of-home placement should be made, the
court must balance the interests of the child with the interests of the
community, and here, the juvenile court balanced incorrectly.
FN8. Interestingly, but not surprisingly, other purposes not mentioned by M.R.
include: consistent with the protection of the public and public safety, to
promote the concept of punishment for criminal acts, to provide treatment,
training, and rehabilitation that emphasizes the accountability and
responsibility of both the parent and the child for the child's conduct, and to
control the commission of unlawful acts by children. See Tex.Fam.Code Ann .
51.01(2)(3)(4) (Vernon 1996).
First, M.R. asserts that the evidence is insufficient because the psychologist,
Dr. Guido Barrientos, spent five minutes interviewing M.R., and M.R.'s probation
officer, Linda Yvonne Castro, the State's sole witness at trial and the author
of M.R.'s pre-disposition report, relied extensively on that psychologist's
report in making her recommendation that M.R. should be committed to TYC. As
such, her recommendation was not based on an accurate or impartial assessment of
M.R.'s characteristics or needs.
The record reflects, however, that Castro's recommendation was not based solely
or even primarily on Dr. Barrientos's report. The general reasons behind her
recommendation that M.R. be committed to TYC were based on M.R.'s and his
family's lack of compliance generally, M.R.'s lack of motivation, and M.R.'s
prior juvenile history. Her reasons included: (1) the family was considered to
be "unworkable," partly because M.R.'s father had on several occasions
not reported M.R.'s probation violations, including one instance when police
found M.R. violating curfew while in the company of A.O., a juvenile who had
been adjudicated with M.R. on M.R.'s previous theft offense; (2) M.R. tested
positive for cannabinoids; (3) Castro believed that it was M.R.'s lack of
motivation, not his learning disability, that affected his ability to finish
school; [FN10] (4) M.R. failed to enroll in or attend school; (5) M.R. lied to
Castro about attending the G.E.D. program, a program from which M.R. was
terminated because of his continued absence; (6) M.R. refused to submit to
required urine analysis tests on two occasions; [FN11] (7) M.R.'s probationary
period for the criminal trespass offense was continued for fourteen months
because he had not completed his community service hours; and (8) the general
welfare of the community. Notwithstanding any reliance on Dr. Barrientos's
psychological report, there was ample evidence presented before the juvenile
court to support the probation department's recommendations.
FN10. With regard to school, M.R. was ordered to attend school at Raymond Telles,
an alternative school, because he had violated school rules at Jefferson High
School. Although he attended class during the spring semester at Raymond Telles,
he did not pass his classes. M.R. was also ordered to attend summer school, but
he never registered for it. During the subsequent fall semester, M.R. was to
have attended a G.E.D. program, but he did not.
FN11. When the tests were finally administered two days after they were
requested, the results were negative.
Second, M.R. contends that the court erred in not finding that viable options
were available other than commitment to TYC. Primarily, M.R. asserts that he
should have been offered a chance at the First Time Offenders Program in Life
Management, a program where he could deal with his psychological problems, get
an education, and be provided with transportation to and from the facility.
[FN12] Javier Loya, a caseworker who had been employed with Life Management for
three months, testified on M.R.'s behalf that this program would be available
and beneficial to M.R. On cross-examination, however, Loya admitted that M.R.'s
chart showed that M.R. had previously been in the Life Management program, but
that the program's services were terminated during the time period when M.R. was
"getting arrested" and "getting in trouble." Additionally,
Castro had already testified that although M.R. had appeared for the
court-ordered evaluation and three meetings with the doctor at Life Management,
M.R. had not made himself available for the court-ordered case management
services with Life Management. In other words, this program had already proven
unsuccessful for M.R.
FN12. The family did not have transportation. M.R. testified that it was at this
time that he was unable to fulfill his community service requirements.
Finally, M.R. contends that the juvenile court's deviation from Progressive
Sanction Guidelines under Sections 59.003 and 59.007 support an inference that
the trial court abused its discretion in committing M.R. to TYC because the
court's decision not to employ a sanction short of commitment was unfair and
more of a leap than a step in the progression of his treatment. However, M.R.
correctly concedes that under Texas Family Code Section 59.014 the failure to
assign a sanction level cannot be used as a ground for this court's review.
In sum, it has been held that a proper commitment to TYC may occur when, as
here, there has been a negative recommendation for probation from the juvenile's
probation officer. Based on the foregoing facts, and considering all of the
purposes of the Juvenile Justice Code, we find that the juvenile court did not
abuse its discretion when it found factually sufficient evidence to support its
findings that placement outside the home was in M.R.'s best interest, that
reasonable efforts were made to prevent M.R.'s removal from his home, and that
M.R., in his home, could not be provided with the level of support and
supervision that he would need to meet the conditions of probation. Considering
the juvenile court's application of Section 54.04(i), we cannot conclude that
the juvenile court abused its discretion in committing M.R. to TYC. The sole
point on appeal is overruled.