In re D.M.

• Decision Date: 30 March 2006
• Docket Number: No. 03-04-00446-CV.,03-04-00446-CV.
• Citation: 191 S.W.3d 381
• Parties: In the Matter of D. M.
• Court: Texas Court of Appeals

191 S.W.3d 381

In the Matter of D. M.

No. 03-04-00446-CV.

Court of Appeals of Texas, Austin.

March 30, 2006.

COPYRIGHT MATERIAL OMITTED

Martin J. Cirkiel and Kelly Hinton, Cirkiel & Associates, P.C., Round Rock, for Appellants.

Crystal D. Murray, Wayne Porter, Assistant County Attorneys, Georgetown, for Appellee.

Before Chief Justice LAW, Justices PATTERSON and PURYEAR.

OPINION

DAVID PURYEAR, Justice.

D.M. set fire to a couch, which caused extensive damage to his school. The trial court ordered D.M.'s parents ("appellants") to pay $25,000 in restitution as part of its order of probation. See Tex. Fam. Code Ann. § 54.041(b) (West Supp.2005). Appellants appeal the order, arguing that there was insufficient evidence to support the amount of restitution ordered and that the statutes governing restitution are unconstitutional because they violate the "open courts" provision of the Texas Constitution and violate due process. See Tex. Const. art. I, § 13. We will affirm the order of the trial court.

STATUTORY FRAMEWORK

Before addressing the merits of appellants' arguments, we will review the framework governing restitution in juvenile proceedings. The juvenile justice code, located in the family code, was enacted for several reasons including the desire "to promote the concept of punishment for criminal acts" and "to protect the welfare of the community and to control the commission of unlawful acts by children." Tex. Fam.Code Ann. § 51.01(2)(A), (4) (West 2002). The code emphasizes that both the parents and the child are responsible for the conduct of the child. Section 51.01(2)(C) states that one of the goals of the juvenile justice code is to provide "rehabilitation that emphasizes accountability and responsibility of both the parent and the child for the child's conduct." Id. § 51.01(2)(C) (West 2002). Further, the code was enacted "to provide a simple judicial procedure through which the provisions of this title are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced." Id. § 51.01(6) (West 2002).

Juvenile delinquency proceedings, although considered civil proceedings, are quasi-criminal in nature. In re M.S., 985 S.W.2d 278, 280 (Tex.App.-Corpus Christi 1999, no pet.); In re J.R., 907 S.W.2d 107, 109 (Tex.App.-Austin 1995, no pet.). Portions of juvenile proceedings are governed by the rules of criminal proceedings including the State's burden of proof, the right to trial by jury, the privilege against self-incrimination, the right to trial and confrontation of witnesses, and confessions. In re J.R., 907 S.W.2d at 109.

As part of a delinquency determination, the court is allowed to consider what amount of restitution, if any, should be paid to the victim of the crime committed by the juvenile. Tex. Fam.Code Ann. § 54.041 (West 2002 & Supp.2005). The code allows restitution to be issued against the juvenile or the parents of the juvenile. Id. § 54.041(b). However, the maximum amount of restitution that parents may be required to pay as a result of their child's wilful and malicious conduct is $25,000. Id. § 41.002 (West 2002). Further, the restitution ordered must promote the rehabilitation of the child. Id. § 54.04(b) (West 2002 & Supp.2005). If the court finds that the parents have made "reasonable good faith efforts" to prevent their child from engaging in delinquent behavior, the court shall waive any requirement that the parents pay restitution. Id. § 54.041(g).

Because juvenile cases are quasi-criminal, the rules pertaining to restitution in criminal cases apply to juvenile cases. In re M.S., 985 S.W.2d at 280. The trial court has broad discretion in determining the amount of restitution. Long v. State, 7 S.W.3d 316, 323 (Tex.App.-Beaumont 1999, no pet.). However, the amount of restitution that may be ordered is limited to the actual damages sustained. See Tex. Fam. Code Ann. § 54.041(c). Further, the amount of restitution awarded must be "just," meaning it must be supported by sufficient factual evidence in the record that the expense was incurred, but there is no requirement that the injured party prove that the amount of expense incurred was reasonable. In re J.R., 907 S.W.2d at 109.

BACKGROUND

At the time of the appeal, D.M. was a thirteen-year-old boy who had previously been diagnosed with Attention Deficit, Hyperactivity Disorder ("ADHD") for which he had taken various medications for years. As a result of his diagnosis, D.M. was eligible for special education services and had been enrolled in modified classes for behavior management in public school. In early November 2003, D.M. was taken off of his ADHD medications by his physician and was placed on anti-depressants.

On November 10, 2003, D.M. set off a fire alarm at school. After the incident, D.M. was temporarily placed in an alternative program outside of his school. An admission, review, and dismissal meeting occurred,¹ and the committee concluded that D.M. should return to his previous school.

On December 2, 2003, the day after he returned to his normal school schedule, D.M. set fire to a couch inside the school, which caused over $100,000 in damage to the school.² When D.M.'s locker was searched, nearly empty bottles of rubbing alcohol and nail polish remover as well as a can of disinfectant spray and a lighter were discovered. D.M. admitted that he brought the rubbing alcohol and lighter from home.

After the incident, D.M. was taken to a detention center and then later admitted to Meridell Treatment Center, a center for children who have emotional and behavioral problems. While in Meridell, D.M. underwent several psychological evaluations. In one of these evaluations, D.M. admitted that he was fascinated by fire. He also admitted that he started experimenting with fire when he was four or five years old and that he has done some "explosive stuff" in his backyard. He further stated that, although there are certain people at his school that he would like to hurt, he has done a good job of restraining himself.

D.M. was released from Meridell in February 2004 and pleaded true to a charge of felony criminal mischief. See Tex. Pen. Code Ann. § 28.03 (West Supp.2005). The trial court conducted a hearing to determine D.M.'s disposition and the amount of restitution to be paid. See Tex. Fam.Code Ann. §§ 54.04 (West Supp.2005), 54.041. At the hearing, D.M. testified that other students picked on him and that the teachers never did anything about it even after he told them. Further, he stated that several boys had pressured him to pull the fire alarm and to set the fire and had pressured him to damage other school property as well. Although D.M. agreed that he should be held responsible for setting the fire, he also stated that the school was partially to blame for the incident because the school did not protect him from the bullying and harassment.

D.M.'s father also testified at the hearing. He testified that, after the incident with the fire alarm, he and his wife were concerned about placing D.M. back into general classes and that they had communicated their concerns to school officials who assured them they would monitor D.M. He also testified that he believed his liability as a parent should be limited to the replacement cost of the couch D.M. burned and that the school should assume responsibility for the remainder of the damage.

Further, he stated that he had advised his son to notify a teacher whenever he was bullied and to walk away from the situation. He also described the discipline D.M. received at home when he misbehaves, including revocation of computer video game, and television privileges, and testified that he and his wife have done everything possible to prevent D.M. from breaking the law. He also stated that he encouraged D.M. to tell the truth about what happened to the police and that D.M. should take responsibility for the damage he has done.

The assistant director for juvenile services for Williamson County, Scott Matthew, also testified at the hearing. Matthew stated that juvenile services recommended D.M. receive twelve months' in-home probation. Matthew recommended that the parents be required to pay the maximum amount allowed by the family code as restitution. Matthew further testified that D.M.'s parents have provided an "umbrella" of protection for him, which has allowed D.M. to avoid the consequences of his actions.

A pre-disposition social history report, which had been prepared previously, was admitted into evidence at the hearing. The report included a statement from D.M.'s mother. In the statement, D.M.'s mother wrote that she notified the school of the change in his medications and of the possibility that D.M. may be suffering from bipolar disorder. She further stated that, within a few days of the medicine change, D.M. began exhibiting strange behaviors, including trying to bite a teacher. She also stated that she blamed the school for failing to adequately monitor D.M.'s behavior after she informed the school of the change in his medication and for failing to take action in light of the strange behaviors D.M. exhibited prior to setting off the fire alarm. In addition, she stated that she had repeatedly complained to the school about D.M.'s poor social skills and lack of friends and that she believed the school had failed D.M. by not addressing the harassing and bullying that had previously occurred. Finally, she described D.M.'s home life. She stated that they had a strict but loving household, that D.M. is helpful around the house, and that they did their best to discipline D.M. for his misbehavior.

After hearing testimony, the trial court entered an order of probation under which D.M. was placed on in-home probation for 12 months and D.M.'s parents were ordered to pay $25,000 in restitution: $10,000 within 30 days and $1500 per month after the first payment. The order also required D.M. to...