In re E.R.L.

• Decision Date: 05 June 2003
• Docket Number: No. 08-02-00259-CV.,08-02-00259-CV.
• Citation: 109 S.W.3d 123
• Parties: In the Matter of E.R.L., A Juvenile.
• Court: Texas Court of Appeals

109 S.W.3d 123

In the Matter of E.R.L., A Juvenile.

No. 08-02-00259-CV.

Court of Appeals of Texas, El Paso.

June 5, 2003.

M. Clara Hernandez, El Paso County Public Defender, El Paso, for appellant.

Jose R. Rodriguez, County Attorney, El Paso, for appellee.

Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.

OPINION

SUSAN LARSEN, Justice.

E.R.L., a juvenile, appeals the modification of his disposition on a finding of delinquency, based on indecency with a child. After a hearing and evaluation, the trial court committed E.R.L. to the Texas Youth Commission. We affirm.

Summary of the Evidence

On March 28, 2000, E.R.L. confessed to one count of indecency with a child. A jury found that he had not engaged in delinquent conduct with respect to five other allegations. At his disposition hearing on May 19, 2000, he was placed on out-of-home probation at Woodside Trails Therapeutic Camp in Bastrop County, Texas.

Reports suggest that E.R.L. was making progress with his therapy. He had been allowed to visit his mother and siblings in El Paso and his aunt in San Antonio on a number of occasions. He returned to the camp as required on each of these occasions. On October 19, 2001, an administrative review recommended that E.R.L. remain at Woodside Trails for an additional two months to work on "impulse and anger control, his sexual perpetration issues, and family issues." At the time, he was reported to have been both angry and sad that his mother was relinquishing her parental rights. In October and November of 2001, E.R.L. began to act out, regressing to his old behavior when he arrived at the camp. This included becoming intimidating, controlling, and aggressive. He began to get back on track prior to running away in January. On December H, 2001, the treatment team suggested that E.R.L. continue his treatment until March 2002. E.R.L. also indicated that he did not want to return to El Paso, preferring to stay in Bastrop County, Texas.

On January 29, 2002, E.R.L. ran away from Woodside Trails, taking a van that belonged to one of the house parents without consent. His girlfriend S.___ and one of her friends left with him. The vehicle was found the next morning in San Marcos, Texas, after a phone call from a friend of S.___. A juvenile warrant of arrest was issued by Judge Alfredo Chavez on February 1, 2002. After spending a few months in Mexico City, E.R.L. returned to his mother's house in El Paso on May 1, 2002. E.R.L. reported that while in Mexico City he consumed alcohol and marijuana. No criminal charges were filed. Following his return, the State filed a motion to modify disposition with regard to a number of probation violations.

The El Paso Juvenile Probation Department, through the testimony of E.R.L.'s probation officer, recommended that E.R.L. be committed to the Texas Youth Commission. According to the officer, returning E.R.L. to Woodside Trails was not an option at this point and other programs were not available for his specific needs. E.R.L. also has a strained relationship with his mother and is considered a flight risk. The only option other than Woodside Trails is Texas Youth Commission, which also has programs to address E.R.L.'s needs. The highly structured program of TYC has been suggested as integral for his treatment. Challenge Boot Camp is also not an option because they do not accept persons with sexual offenses. Neither E.R.L. nor his mother are in agreement on the recommendation to send him to TYC. Woodside Trails indicated that they would be willing to take E.R.L. back after he had been incarcerated for nine months to a year.

The defense elicited testimony from the probation officer that the Probation Department has sent some juveniles through an El Paso program with Reed and Associates for sex offender therapy. Initially, E.R.L. was referred to Reed and Associates for an evaluation. The probation officer testified that E.R.L.'s mother was living with her sister Elizabeth, but that she would move out so that E.R.L. could move into the home. The mother confirmed this. At the time of trial, she was unemployed and not receiving government benefits, so the officer did not "understand how financially she is going to be able to move out and get her own apartment." E.R.L.'s mother explained that she would be moving into her sister Armida's house. She also had spoken with both the Millennium Program and Therapy Services of El Paso, and found that they could provide outpatient rehabilitation services. According to her testimony, Medicaid would cover the costs of those services.

The recommendation of the El Paso Juvenile Probation Department was based on E.R.L.'s behavior prior to absconding, as well as that while he was away, particularly substance abuse, poor judgment, and refusal to take responsibility for his actions.

Another aunt in San Antonio was willing to take E.R.L. in. The counselors at Woodside Trails encourage him to work toward this goal. They do not want him to return to living with his mother. She appears to agree with this since she is trying to get her youngest son returned to her. E.R.L.'s mother would like a relative to take custody of him. E.R.L.'s mother has shown that she cannot provide adequate supervision for him, has failed to set firm limits on his actions, and has voiced a desire to relinquish parental rights over E.R.L. and all but one of her other children. The Department of Probation also found it difficult to work with E.R.L.'s mother. In the beginning she was not compliant. By the latter part of 2002, however, she was working and was becoming better at complying with the requests of the Probation Department. By the time of trial, E.R.L.'s mother was living with her sister and was unemployed. The mother was willing to move from her sister's house so that E.R.L. could move into the home.

At the time of trial, E.R.L. was sixteen and a half years old. The department would only have another year and a half to work with the juvenile prior to his eighteenth birthday, at which time he would need to be transferred to the adult corrections system. If placed in TYC, however, E.R.L. could stay until he was twenty-one. It was the opinion of the Juvenile Probation Department that TYC would better be able to deal with the needs of E.R.L. than the adult system, even if the adult system did provide sex offender treatment.

Judge Alfredo Chavez made a number of findings based upon the testimony at the hearing. He began by assuring the parties that "I do not believe in sending El Paso County children outside of our county, especially through TYC whenever we have these services available here locally." Assuming that E.R.L.'s mother could provide adequate supervision, the judge did not believe that he would benefit from the out-patient services available in El Paso County, in particular with regard to the sex offender treatment. The judge then found that E.R.L.'s mother was not capable of providing the quality of care and level of support and supervision necessary to help E.R.L. meet the conditions of his supervision. He also found that E.R.L. was a flight risk and has made some very bad decisions, chalking the latter up to immaturity and lack of supervision. Finding that the youth needed rehabilitation, and that protection of the juvenile and the public requires it, Judge Chavez ordered E.R.L. committed to the Texas Youth Commission.

Discussion

In two related issues, E.R.L. challenges the legal and factual sufficiency of the evidence used to justify the commitment to Texas Youth Commission. Finding ample evidence supporting the judgment, we affirm the decision of the trial court.

The Texas Family Code section 54.04(i) puts forth specific considerations for commitment to TYC:

(i) If the court places the child on probation outside the child's home or commits the 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 interests 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) (Vernon 2002); gee also In re C.J.H., 79 S.W.3d 698, 704 (Tex.App.-Fort Worth 2002, no pet.); In re L.R., 67 S.W.3d 332, 335 (Tex. App.-El Paso 2001, no pet.); In re T.K.E., 5 S.W.3d 782, 784 (Tex.App.-San Antonio 1999, no pet.). Where the underlying offense was indecency with a child, commitment to TYC is authorized. TEX. FAM. CODE ANN. § 54,05(f) (Vernon 2002). The findings of the judge of a juvenile court are not limited to reasons as enumerated in the statute. See In re L.R., 67 S.W.3d at 337.

In addition to making the affirmative findings as required under section 54.04(i), the trial judge listed specific reasons for the disposition in the judgment of commitment:

1. The juvenile needs to be held accountable and responsible for his/her delinquent behavior.

2. The Court is of the opinion that the juvenile poses a risk to the safety and protection of the community if no disposition is made.

3. The Court is of the opinion that no community-based intermediate sanction is available to adequately address the needs of the juvenile or to adequately protect the needs of the community.

4. The Court is of the opinion that the gravity of the offense requires that the juvenile be confined to a secure facility.

5. The Court is of the opinion that the prior juvenile record of the juvenile requires that he/she be confined in a secure facility.

This satisfies the requirement of section 54.04(f) that the trial court specifically state the reasons for its disposition in its order. TEX. FAM.CODE ANN. § 54.04(f) (Vernon 2002).

E.R.L. challenges the determination of the...