By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law

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Prior attempts at community placement and lack of parental supervision justify TYC commitment [In re T.A.] (03-4-14).

On October 30, 2003, the El Paso Court of Appeals held that the juvenile court's commitment to TYC was justified because of its prior efforts to rehabilitate the juvenile through community placements and because the juvenile's mother refused to cooperate with the court.

DISPOSITION PROCEEDINGS-
PRIOR ATTEMPTS AT COMMUNITY PLACEMENT AND LACK OF PARENTAL SUPERVISION JUSTIFY TYC COMMITMENT

03-4-14. In Matter of T.A., UNPUBLISHED, No. 08-02-00101-CV, 2003 WL 22461810, 2003 Tex.App.Lexis ____ (Tex.App.-El Paso 10/30/03) Texas Juvenile Law (5th Ed. 2000).

Facts: T.A., a juvenile, appeals from a judgment committing him to the Texas Youth Commission.

T.A. was placed in the First Offender Program on November 1, 2000 as a result of possession of marijuana on December 6, 1999. T.A. was detained on January 18, 2001 for Burglary of a Vehicle and, thus, failed to complete the program. T.A. was adjudicated a delinquent child on January 25, 2001 for Burglary of a Vehicle. On February 13, 2001, T.A. was brought under the jurisdiction of the court and placed on supervised probation with electronic monitoring until his eighteenth birthday.

T.A. absconded on March 21, 2001. The 327th District Court issued a juvenile warrant on March 26, 2001. On March 25, 2001, T.A. was referred for the offense of robbery. On April 3, 2001, T.A. was adjudicated a delinquent child for the amended offense of assault. On April 24, 2001, T.A. was brought under the jurisdiction of the court and placed on Intensive Supervision Probation with the Serious Habitual Offender Comprehensive Action Program ("S.H.O.C.A.P.") until his eighteenth birthday.

On July 15, 2001 T.A. absconded from his residence. As a result, the El Paso County Juvenile Probation Department submitted a request for juvenile warrant on July 17, 2001. On July 24, 2001 a hearing to modify a prior disposition was held, and the court sustained the motion to modify. During a modification hearing held on August 16, 2001 T.A. was ordered on out of home placement probation in the Challenge Boot Camp Program.

T.A. was successfully discharged from the Challenge Boot Camp Program on November 21, 2001. T.A. continued on the Intensive Supervision with S.H.O.A.C.A.P. until his eighteenth birthday. On January 3, 2002, during a hearing to modify a prior disposition, the court sustained the motion to modify.

During a disposition hearing held on January 22, 2002, Marc Marquez, a probation officer with the El Paso County Juvenile Probation Department, recommended that T.A. be placed on out of home placement probation in the Southwest Key Transitional Living Center until his eighteenth birthday. The court decided not to abide by the Probation Department's recommendation. The court held that the juvenile's best interest would be best served outside the home, since the juvenile has no parents to supervise, control or discipline him, nor does he lend himself to suitable discipline, control and supervision. The court also felt that reasonable efforts were made to prevent or eliminate the need for T.A. to be removed from his home and facilitate his return home. In addition, the court felt that:

[t]he juvenile needs to be held accountable and responsible for his delinquent behavior ... the juvenile poses a risk to the safety of the community if no disposition is made ... no community based intermediate sanction is available that adequately addresses the needs of the juvenile or adequately addresses the needs to protect the community ... the gravity of the offense requires the juvenile be confined in a secured facility and ... the prior juvenile record of the juvenile requires that he or she be confined to a secure facility.

Held: Affirmed.

Opinion Text: In two related issues, T.A. contends that the evidence is legally and factually insufficient to support the court's order that he be committed to the Texas Youth Commission. Specifically, T.A. asserts the court erred by not exhausting alternative placement programs.

A. Legal Sufficiency

In examining legal sufficiency, we consider only the evidence that tends to support the findings of the trier of fact and disregard all evidence and inferences to the contrary. In re E.R.L., 2003 WL 21290917, 4 (Tex.App. El Paso 2003) (not yet released for publication) (citing In re C.J.H., 79 S.W.3d 698, 703 (Tex.App. Forth Worth 2002 no pet.). If more than a scintilla of evidence exists to support the questioned finding, the point fails. Id. We must determine whether the court acted without reference to any guiding rules and principles. In re L.R., 67 S.W.3d 332, 338 (Tex.App. El Paso 2001, no pet.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986)).

The record reveals a history of attempts to place T.A. in the least restrictive program possible. T.A. was placed on supervised probation, supervised probation with electronic monitoring, intensive supervised probation under the S.H.O.C.A.P. program, and out of home placement at the Challenge Boot Camp Program. Despite these efforts, T.A. continued to violate his probation. In addition, T.A.'s family was uncooperative. T.A.'s mother consistently violated the trial court's orders and failed to cooperate with counseling. The aforementioned reasons provide sufficient evidence to support the trial judge's decision. Finding no abuse of discretion, Appellant's Issue No. One is overruled.

B. Factual Sufficiency

When conducting a factual sufficiency review of the evidence, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App. El Paso 1997, no pet.). In a juvenile case, the trial court is vested with broad discretion to determine a suitable disposition of a child who has been adjudicated to have engaged in delinquent conduct. In the Matter of A.S., 954 S.W.2d 855, 861 (Tex.App. El Paso 1997, no pet.) (citing In the Matter of J.R., 907 S.W.2d 107, 110 (Tex.App. Austin 1995, no writ). The mere fact that a trial judge may decide a matter with his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. In the Matter of L.R., 67 S.W.3d at 332 (citing Southwestern Bell Telephone Company v. Johnson, 389 S.W.2d 645, 648 (Tex.1965)). Absent an abuse of discretion, we will not disturb the juvenile court's findings. A.S., 954 S.W.2d at 861 (citing In the Matter of C.C., 930 S.W.2d 929, 930 (Tex.App. Austin 1996, no writ)).

The juvenile court's exercise of discretion in making an appropriate disposition is guided by the requirements of Section 54.04 of the Family Code. When a court commits a child to the Texas Youth Commission, the court:

(1) shall include in its order its determination that:
(A) it is in the child's best interest to be placed outside the child's home;
(B) 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
(C) 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. § 54.04(i)(1) (Vernon 2002).

In line with the requirements of Section 54.04, the court determined that in light of a lack of family support, it was in T.A.'s best interest to be placed outside the home. Specifically, the court found that T.A. has no parents to supervise, control or discipline him, nor does he lend himself to suitable discipline, control, and supervision. The court also detailed the reasonable efforts that were made to prevent or eliminate the need for T.A.'s removal from the home: supervised probation, supervised probation with electronic monitoring, intensive supervised probation under the S.H.O.C.A.P. program, and out of home placement at the Challenge Boot Camp Program. The court also detailed its findings on why T.A. cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation. The court explained that T.A.'s mother had consistently violated the court's orders and failed to supervise her son or cooperate with counseling. The court also cited the stepfather's inability to supervise T.A. as well as T.A.'s unwillingness to listen to his stepfather. Moreover, in response to the court's inquiry regarding what has changed in the home that would enable T.A. and his mother to comply with the terms of probation, T.A.'s mother said that the home remained the same.

In addition to fulfilling the requirements of Section 54.04, the trial court explained that the juvenile needs to be held accountable for his delinquent behavior which poses a risk to the community's safety. The court also found that no community based intermediate sanction is available to adequately address T.A.'s needs or the community's need for protection. Thus, we find that the evidence was factually sufficient to support the court's findings. Accordingly, Issue No. Two is overruled.

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