Summary
finding evidence of juvenile's history of leaving mother's home without permission, continued and repeated criminal conduct, issues at school, habitual drug use, and need for structured and secure residential setting sufficient to support best interest finding
Summary of this case from In re B.E.E.Opinion
01-19-00988-CV
07-13-2021
IN THE MATTER OF W.J.P.
On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2019-03027J
Panel consists of Chief Justice Radack and Justices Landau and Countiss.
MEMORANDUM OPINION
Sherry Radack Chief Justice.
Appellant, W.J.P., appeals a determinate-sentencing judgment committing him to the Texas Juvenile Justice Department (TJJD) for six-years. In the trial court, appellant stipulated that he engaged in delinquent conduct by committing aggravated robbery causing serious bodily injury, an offense classified as a first-degree felony. See TEX. PENAL CODE §§ 29.02, 29.03(a)(1). In three issues on appeal, appellant contends that the trial court abused its discretion in committing him to TJJD custody because there is insufficient evidence to support the trial court's statutorily-required findings supporting commitment. We affirm.
See TEX. FAM. CODE § 54.04(i)(1) (requiring specific findings by trial court before committing child to TJJD's custody).
BACKGROUND
On July 21, 2019, John was confronted outside of an elementary school by several assailants-including appellant-who intended to rob him. He was then beaten severely with an umbrella (struck multiple times in the head) and had his face and body repeatedly stomped into the ground, inducing a seizure. Appellant, a sixteen-year-old, was identified as one of John's attackers, and the State filed a petition alleging delinquent conduct, i.e., aggravated robbery, to which he pleaded true.
We refer to the child victim by a pseudonym. See TEX. R. APP. P. 9.8(c).
Though appellant was also charged with several other offenses, ranging from possession of marijuana to the unauthorized use of a motor vehicle, these were dropped in favor of the aggravated-robbery petition. The prosecutor told the trial court about "a bevy of other cases that we have offered dismissals on in the spirit of a plea agreement[.]" The defense attorney claimed that the non-suits were based on evidentiary issues and were not a plea bargain. And, in fact, the State did not agree to recommend a sentence in this case.
John's mother, testifying about the extent of her son's injuries, presented evidence that he suffered, not only bruising, but also a concussion, a seizure, and long-term hearing loss due to blood that had pooled in his ear. She also testified about post-traumatic stress that John suffered as a result of the assault.
The prosecutor also introduced appellant's Probation Report into evidence, which contained: (1) a court report information summary, (2) a pre-court staffing report, (3) a court-ordered psychological evaluation report, (4) a juvenile detention psychological screening, (5) a juvenile probation department court report, (6) a Positive Achievement Change Tool pre-screen response report, (7) a juvenile probation gang assessment report, and (8) appellant's attendance, grade, and disciplinary records from Clear Brook High School. These documents contained information about appellant's home life, school life, criminal charges and referrals, and psychological evaluations.
Based on the Probation Report, the Harris County Juvenile Probation Department suggested putting appellant in the custody of the Chief Juvenile Probation Officer, with a placement at either the Harris County Youth Village or the Harris County Leadership Academy; the State recommended that appellant receive an eight-year determinate sentence to be served at TJJD.
Appellant's mother testified that she had a heart attack a few months before the offense and that appellant found her. She was hospitalized for a few weeks. Counsel for appellant asked that he be sentenced to the minimum of three years and assessed for placement at the Woodward Academy or, alternatively, that he be placed at Youth Village so that he could complete his GED.
The trial court, responding to evidence presented regarding the seriousness of the offense in question, as well as appellant's history with maladaptive behavior, agreed that the "[c]hild needs a highly structured environment with a level of supervision and control that cannot be met by resources available within the community" and sentenced him to six years' custody in the TJJD.
PROPRIETY OF DISPOSITION
In three issues, appellant contends that the trial court abused its discretion in committing him to TJJD custody because there is insufficient evidence that (1) reasonable efforts were made to prevent or eliminate the need for his removal from his home; (2) in his home he could not be provided with the quality of care necessary to meet the conditions of his probation; and (3) it is in his best interest to be placed outside his home. We address each issue, respectively.
Applicable Law and Standard of Review
A juvenile court may commit a child to TJJD only if it finds, among other things, that
• it is in the child's best interests to be placed outside of his home;
• reasonable efforts were made to prevent or eliminate the need for removal and return of the child to his home; and
• the child, in his home, cannot be provided the quality of care, and level of support and supervision that he needs to meet the conditions of probation.TEX. FAM. CODE § 54.04(i)(1).
A juvenile court has broad discretion to determine a suitable disposition for a juvenile who has been adjudicated as having engaged in delinquent behavior. See In re E.D., 127 S.W.3d 860, 862-63 (Tex. App.-Austin 2004, no pet.); see also In re C.J., No. 01-08-00771-CV, 2009 WL 1886614, at *2 (Tex. App.-Houston [1st Dist.] July 2, 2009, no pet.) (mem. op.) (applying abuse-of-discretion standard in reviewing disposition order). An abuse of discretion occurs when the juvenile court acts unreasonably or arbitrarily, or without reference to any guiding rules or principles. C.J., 2009 WL 1886614, at *2 (citing In re J.O., 247 S.W.3d 422, 424 (Tex. App.-Dallas 2008, no pet.)). Under an abuse-of-discretion standard, the legal and factual sufficiency of the evidence are relevant in evaluating whether the juvenile court abused its discretion. In re C.G., 162 S.W.3d 448, 452 (Tex. App.- Dallas 2005, no pet.).
In reviewing the legal sufficiency of the evidence supporting a juvenile court disposition, an appellate court considers the evidence and inferences tending to support the court's findings and sets aside the judgment only if there is no evidence of probative force to support the findings. Id.; In re H.R.C., 153 S.W.3d 266, 269 (Tex. App.-El Paso 2004, no pet.); In re C.J.H., 79 S.W.3d 698, 703 (Tex. App.- Fort Worth 2002, no pet.). We consider the evidence in the light most favorable to the judgment and indulge every reasonable inference that would support it. In re A.T.M., 281 S.W.3d 67, 71 (Tex. App.-El Paso 2008, no pet.). Anything more than a scintilla of evidence is legally sufficient to support the finding. C.J.H., 79 S.W.3d at 703. In reviewing the factual sufficiency of the evidence supporting a juvenile court's disposition, we consider and weigh all the evidence and set aside the judgment only if the finding is so against the great weight and preponderance of the evidence as to be clearly unjust. A.T.M., 281 S.W.3d at 71; C.G., 162 S.W.3d at 452; H.R.C., 153 S.W.3d at 269.
Reasonable Efforts
In issue one, appellant contends that the evidence is legally and factually insufficient to establish that reasonable efforts were made to avoid commitment in TJJD and to return appellant to his home. Citing In re A.S., 954 S.W.2d 855 (Tex. App.-El Paso 1997, no pet.), appellant argues that the record in this case "do[es] not show that alternatives to removal of the child were [un]available, unsuitable, or even explored," and argues that the trial court should have considered alternative services to address appellant's trauma and substance abuse.
However, "reasonable efforts" does not mean that "services" must first be explored. See In re B.R., No. 02-19-00328-CV, 2020 WL 3969556 at *6 (Tex. App.-Fort Worth June 18, 2020, no pet.). A trial court is not required to exhaust all possible alternatives before sending a juvenile to the TJJD. See In re T.D., No. 12-19-00259-CV, 2020 WL 1528062, at *2 (Tex. App.-Tyler Mar. 31, 2020, no pet.) (mem. op.); In re J.R.C., 236 S.W.3d 870, 875 (Tex. App.-Texarkana 2007, no pet.); see also In re A.M.C., No. 04-11-00116-CV, 2011 WL 6090077, at *4 (Tex. App.-San Antonio Dec. 7, 2011, no pet.) (mem. op.) (holding trial court not required to first exhaust probation and outside placements before ordering child committed, given severe pattern of delinquent conduct).
Further, we find A.S. to be distinguishable. In A.S., a police officer discovered A.S. and another minor after they set off a burglar alarm at a department store. Id. at 857. A.S. and the other minor fled, but the police officer caught the other minor. Id. As the officer struggled to detain the other minor, he was attacked with a crowbar by yet a third person. Id. The police officer required extensive surgery as a result of the attack. Id. The third person who attacked the police officer died after being shot. Id. Both minors, including A.S., were charged with felony murder, burglary of a building, and aggravated assault of a police officer. Id. A jury acquitted A.S. of felony murder and aggravated assault of a police officer and convicted him only of a state-jail felony for burglary of a building. Id. The trial court committed A.S. to confinement in the Texas Youth Commission. Id. at 861.
The Texas Youth Commission (TYC) is the predecessor to the TJJD.
On appeal, A.S. argued that there was insufficient evidence to support his commitment to TYC because no reasonable efforts were made to prevent or eliminate his removal from home. Id. at 861-62. The El Paso court agreed, noting that "[o]ther than A.S.'s commission of this state jail felony [burglary of a building] and the violation of his mother's curfew on this occasion, there is no evidence to establish that [A.S.'s mother] cannot provide the quality of care and level of support and supervision that A.S. needs to meet the conditions of probation." Id. at 863. The court also noted that A.S. had been acquitted of two far-more serious felony offenses, "had never been referred by the probation offices" in either city in which he had lived, and "there was no evidence that he [was] currently associated with a gang[.]" Id.
We note that, in A.S., the appellate court discussed "reasonable efforts" and "the quality of care and level of support" elements of section 54.04(i)(a) together.
Unlike the juvenile in A.S., the evidence in this case shows that appellant was not acquitted of any offenses, and he was adjudicated delinquent after committing a serious, violent first-degree felony with a deadly-weapon finding. Generally, a trial court does not abuse its discretion in rendering a commitment order when a delinquent juvenile has engaged in some type of violent activity that makes the juvenile potentially dangerous to the public. In re T.D., 2020 WL 1528062, *2; see also In re L.D., No. 12-06-00193-CV, 2007 WL 677828, at *2 (Tex. App.-Tyler Mar. 7, 2007, no pet.) (mem. op.); In re L.G., 728 S.W.2d 939, 945 (Tex. App.- Austin 1987, writ ref'd n.r.e.).
In A.S., besides the two other offenses, both of which were related to the charged offense and both of which he was acquitted of, the child had no prior referrals to the probation department. 945 S.W.2d at 863. Here, however, in addition to the charged offense, the record shows several separate referrals in a very short period of time. For example, the record shows referrals to Harris Juvenile Probation Office for the following offenses: Possession of Marihuana on 1/6/19; Unauthorized Use of a Motor Vehicle on 2/13/19; Assault on 6/30/19; Burglary of a Habitation on 7/8/19; and the charged offense of Aggravated Robbery on 7/21/19.
The record shows that after his 7/8/19 detention for burglary of a habitation, appellant was released to his mother's custody with an ankle tracker and just 18 days later he was again referred to the juvenile probation department for the present charged offense of aggravated robbery. A child's behavior while in his parent's custody pending disposition is evidence that a trial court can consider as a part of the reasonable-efforts analysis. See B.R., 2020 WL 3969556 at *7.
In addition to the five referrals to Harris County Juvenile Probation, the record shows that appellant was referred to Brazoria County Juvenile Probation on January 29, 2019 for Unlawful Possession of a Firearm and detained until February 1, 2019. After he was released, he received a new referral. Because of this new referral, Brazoria County Juvenile Probation placed appellant at the Unlimited Visions drug inpatient program on February 5, 2019, where he completed a three-month drug rehabilitation program. There is evidence in the record that he resumed using drugs within one month of his release from Unlimited Visions. Three more referrals to Harris County Juvenile probation for assault, burglary of a habitation, and aggravated robbery followed in June and July of 2019.
The record shows that while appellant was in detention and awaiting trial in the present case, he had seven violations for not following staff orders, physical altercations, cursing at the staff, and disruptive behavior.
Appellant's school record shows multiple school suspensions for disrupting class, theft, possession of marijuana, being under the influence of marijuana, and leaving campus. He failed the ninth grade.
Appellant has twice been admitted to a psychiatric hospital-once in 2013 and once in 2018. He was diagnosed with ADHD and bipolar disorder and prescribed medicines, which his mother reported that he now refuses to take.
Based on the seriousness of appellant's crime, his behavior and repeated offenses after several separate referrals to the juvenile probation office, and his resumption of drug use after completing drug rehabilitation, we conclude that more than a scintilla of evidence supports the trial court's finding that reasonable efforts were made to prevent or eliminate the need for appellant's removal from the home and to make it possible for appellant to return to his home. See TEX. FAM. CODE ANN. § 54.04(i)(1)(A); A.T.M., 281 S.W.3d at 71. Further, based on our review of the record, we cannot conclude that the credible evidence supporting the trial court's finding is so weak or so contrary to the overwhelming weight of all the evidence as to be manifestly wrong. See TEX. FAM. CODE ANN. § 54.04(i)(1)(A); A.T.M., 281 S.W.3d at 71.
We overrule issue one.
Quality of Care
In issue two, appellant contends that "the record on appeal does not establish that the Appellant in the Appellant's home cannot be provided the quality of care and level of support and supervision that [] he needs to meet the conditions of probation." Specifically, appellant argues that "[e]vidence at the adjudication and disposition hearing showed that the appellant was willing to go back home to his mother and could follow rules and live in a structured environment."
In contrast to appellant's statement that he was willing to go back home to his mother and follow her rules, there was evidence that, when he was angry, appellant frequently left home for weeks at a time without his mother's permission so that he could "do stuff." Appellant's mother stated that he generally returns home "when the police bring him back." She also reported that he "leaves the home without permission, disregards curfew, become[s] verbally combative and disrespects other family members." In the court report, appellant acknowledged that he "follows his mother's rules sometimes," but that she "does not provide any discipline" and is "lenient." There was also evidence that appellant was verbally and physically abusive to his mother; on one occasion, he "slammed [his mother] to the floor" when she tried to prevent him from smoking. See In re D.L.T., No. 03-06-0069-CV, 2008 WL 2736902 at *5 (Tex. App.-Austin July 9, 2008, no pet.) (mem. op.) (holding inadequate-quality-of-care finding supported by child's history of running away and pattern of behavioral problems at school).
The court report also noted that, in elementary school, appellant was suspended "a lot" for disruption and talking back. In high school, appellant received two in-school suspensions and three or four out-of-school suspensions for behavior, including disrupting class, theft, possessing and being under the influence of marijuana, and leaving campus. See id.
Although appellant was able to successfully complete a three-month drug rehabilitation program, he began using drugs within a month of leaving the controlled setting provided by the rehab facility. And, when appellant was given an ankle monitor and released to his mother's custody, he was quickly charged with committing more crimes. See In re K.J.N., 103 S.W.3d 465, 466 (Tex. App.-San Antonio 2003, no pet.) (holding evidence sufficient for commitment when child had been placed on probation at home under mother's supervision and reoffended a month later); see also In re A.O., 342 S.W.3d 236, 240-41 (Tex. App.-Amarillo 2011, no pet.) (noting that evidence of child's success in residential program followed by reoffending supported lack-of-quality-of-care finding).
In light of appellant's history of failing to comply with his mother's rules, his verbal and physical abuse of her, his leaving home without permission for weeks at a time, and his history of reoffending after being released into his mother's custody, we conclude that more than a scintilla of evidence supports the trial court's finding that the child, in his home, cannot be provided the quality of care and level of support and supervision that he needs to meet the conditions of probation. See TEX. FAM. CODE § 54.04(i)(1)(A); A.T.M., 281 S.W.3d at 71. Further, based on our review of the record, we cannot conclude that the credible evidence supporting the trial court's finding is so weak or so contrary to the overwhelming weight of all the evidence as to be manifestly wrong. See TEX. FAM. CODE § 54.04(i)(1)(A); A.T.M., 281 S.W.3d at 71.
Accordingly, we overrule issue two.
Best Interest of the Child
In issue three, appellant contends the evidence is insufficient to show that it is in his best interest to be placed outside his home. Specifically, he claims that he "is willing to follow his mother's rules" and that his "recent outburst could be explained by evidence of recent trauma including a lack of a father figure and Appellant's mother's recent heart attack." Appellant also contends, among other things, that "the underlying problem that Appellant faces is a history of marijuana abuse, a diagnosis of cannabis use disorder, and only recent substance abuse treatment."
However, as discussed above, appellant has a history of leaving his mother's home without permission and disobeying, defying, and assaulting her. See In re A.E.E., 89 S.W.3d 250, 255 (Tex. App.-Texarkana 2002, no pet.) (noting child's risk of running away or harming parent as evidence supporting best-interest finding). There was also evidence of appellant's continued and repeated criminal conduct, issues at school, habitual drug use, and need for a "structured and secure residential setting." See In re M.A.F., No. 14-03-00698-CV, 2004 WL 1661009, at *2 (Tex. App.-Houston [14th Dist.] July 27, 2004, no pet.) (mem. op.) (holding evidence of repeated delinquent conduct, aggressive behavior, failings at school, drug use, and need for structured environment legally and factually sufficient to support bestinterest finding). Finally, there was evidence of escalating violence by appellant, culminating in the charged offense, followed by several "physical altercations" while in detention. See In re N.A.P., No. 04-02-00900-CV, 2002 WL 31761967, at *2 (Tex. App.-San Antonio Dec. 11, 2002, no pet.) (not designated for publication) (holding evidence of aggressive behavior by child sufficient to show she presented danger to public and that home provided insufficient care and supervision).
In light of the evidence detailed above, we conclude that more than a scintilla of evidence supports the trial court's finding that it is in appellant's best interests to be placed outside of his home. See TEX. FAM. CODE § 54.04(i)(1)(A); A.T.M., 281 S.W.3d at 71. Further, based on our review of the record, we cannot conclude that the credible evidence supporting the trial court's finding is so weak or so contrary to the overwhelming weight of all the evidence as to be manifestly wrong. See TEX. FAM. CODE § 54.04(i)(1)(A); A.T.M., 281 S.W.3d at 71.
We overrule issue three.
CONCLUSION
We affirm the trial court's judgment.