In re A.S.
| Decision Date | 05 December 2013 |
| Docket Number | No. 05-13-01022-CV,05-13-01022-CV |
| Parties | IN THE MATTER OF A.S., A Child |
| Court | Texas Court of Appeals |
MODIFY and AFFIRM; and Opinion Filed December 5, 2013.
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Before Justices FitzGerald, Francis, and Fillmore
Opinion by Justice Fillmore
A.S., a juvenile, appeals the trial court's order modifying disposition and committing him to the Texas Juvenile Justice Department (TJJD).1 In his first two issues, A.J. asserts the trial court abused its discretion by committing him to the TJJD, rather than to a less restrictive placement, and failed to comply with the family code by not specifying in the order the reasons for the modification. In his third issue, A.S. requests we modify the trial court's order to correct clerical errors and to remove duplicative entries. As modified, we affirm the trial court's judgment. We issue this memorandum opinion because the law to be applied in this case is well settled. See TEX. R. APP. P. 47.4.
Background
On May 2, 2012, the trial court found that A.S. was a child engaged in delinquent conduct by committing the offense of robbery, a violation of section 29.02 of the penal code. The trial court placed A.S. on probation for two years, with an initial placement at the Medlock facility to receive therapeutic treatment. A.S. was successfully discharged from Medlock and, on October 18, 2012, his conditions of probation were modified to release him into the custody of his mother and to allow for home detention with electronic monitoring.
The State subsequently filed a motion to modify disposition alleging A.S. violated the conditions of his probation by failing to comply with his curfew restrictions, failing to attend every class on every school day, and testing positive for illegal drug usage on two different occasions. A.S. pleaded true to the allegations he violated his probation by failing to comply with his curfew restrictions on May 13, 2013 and by testing positive for illegal drug usage on April 29, 2013. The State nonsuited the other allegations.
At the hearing on the State's motion to modify, the trial court admitted into evidence several evaluations of A.S., including a predisposition report prepared on May 22, 2013, an addendum to the report prepared on June 5, 2013, a substance abuse evaluation prepared on April 9, 2013, and a psychological evaluation prepared on May 21, 2013. During the substance abuse evaluation, A.S. admitted to the use of opiates and marijuana after his release from Medlock. A.S. also indicated he had been using marijuana since he was eleven years old. He thought he "has a problem" with marijuana and could see "a slight need for drug treatment." The examiner believed A.S. was in need of supportive outpatient services.
During the psychological evaluation, A.S. admitted to violating his 7:00 p.m. curfew and to using illegal drugs. The examiner noted that A.S. was extremely intelligent and would likely excel in school if he attended regularly. The examiner was concerned that A.S.'s use of illegaldrugs was continuing despite the fact he was currently in a drug treatment program. The examiner concluded A.S. was "in need of a highly-structured environment which can better treat his difficulties from abstaining from illegal behaviors." In the predisposition report, the probation department concluded:
Due to the subject's continuous non-compliance with probation, referral history, and previously being placed outside of his home, it appears that the subject is in need of a more structured environment than what his home can be [sic] provide at this time. The Juvenile Department has exhausted all means of rehabilitating the subject in the community. Therefore, it is recommended that the subject be committed to the care and custody of the Texas Juvenile Justice Department (TJJD).
The trial court also admitted into evidence a placement match notification indicating A.S. had been accepted at Shamar Hope Haven and Gulf Coast Trade Center.
Elizabeth Ramos, A.S.'s probation officer, testified that A.S. was released from Medlock in October 2012 and was placed on an electronic monitor. A.S. was unsuccessfully discharged from the electronic monitoring program because he did not charge the monitor. A.S. also did not successfully complete the home detention required by the conditions of his probation.
According to Ramos, A.S. violated his curfew and would stay away from his home until 3:00 a.m. Further, beginning in November 2012, A.S. had positive tests for marijuana use. In addition to marijuana, A.S. was taking "t-bars" and, after testing positive for opiates, admitted he took hydrocodone on one occasion.
A.S. failed to attend school and had eighty-six unexcused absences. Ramos testified that she "kept sanctioning" A.S. and she had "22 written violations on him of responses he did not complete." At a supervisory hearing, A.S. was instructed to "go back to school." A.S. said that he would, but failed to do so.
Ramos received information from A.S.'s school that A.S. attacked another student and attempted to steal the student's gold chain. Ramos was told by the Dallas Police Department thatthere was an assault charge pending against A.S. Although A.S. was suspended from school, he returned to the school and received a criminal trespassing ticket. Ramos also learned that A.S.'s mother returned home from work and found A.S. attempting to take her television set "to sell for drugs." Ramos noted that A.S. had previously been placed on probation in Hays County for the manufacture or delivery of a controlled substance. In Ramos's opinion, one of A.S.'s main problems was drugs.
Ramos testified she had "counseled and counseled" A.S. and had exhausted all available services to keep A.S. in his home. Ramos believed A.S. needed more supervision than his mother could provide and needed a "high secure facility." Ramos was aware that A.S. did not have a history of running away or of gang involvement. She was also aware that A.S. had been accepted by two different facilities, Shamar Hope Haven and Gulf Coast Trade Center, and that, at Gulf Coast Trade Center, A.S. could pursue a trade and receive assistance in obtaining his general education diploma. However, Ramos did not believe either of these facilities was secure.
In Ramos's opinion, A.S. is a child in need of rehabilitation. Ramos recommended that, for the protection of the public and of A.S., A.S. should be committed to the TJJD. According to Ramos, A.S. could obtain supportive outpatient services at TJJD to address his use of illegal substances. Ramos recognized that, while in detention pending the hearing on the motion to modify, A.S. had been "in honors" and was "currently a Level 4." However, in the ten days prior to the hearing, A.S. had lost points for being slow to respond to staff, cursing, and "keeping peer conflict going." Ramos believed that, even though A.S had sustained good behavior in detention, his level of needs and his prior history on probation showed that he needed to be committed to the TJJD and that it was in A.S.'s best interest to be committed to the TJJD.
The trial court found that A.S. had violated the terms of his probation "in the following manner: CONDITION '3' (VIOLATING CURFEW RESTRICTIONS) ON 05/13/13 ANDCONDITION '7' (TESTING POSITIVE FOR ILLEGAL DRUG USAGE) ON 4/29/13" and ordered A.S. committed to the TJJD.
Commitment to TJJD
In his first issue, A.S. complains the trial court abused its discretion by committing him to TJJD when less restrictive placements capable of meeting his needs were available. Relying on evidence that he did not have a history of running away or of gang involvement and that he had behaved well while in detention, A.S. asserts the trial court should have committed him to the Gulf Coast Trade Center.
We review a trial court's determination of a suitable disposition for a child engaged in delinquent conduct under an abuse of discretion standard. In re J.P., 136 S.W.3d 629, 632 (Tex. 2004); In re J.G., No. 03-11-00892-CV, 2013 WL 490941, at *2 (Tex. App.—Austin Feb. 7, 2013, no pet.) (mem. op.). Juvenile courts are vested with broad discretion in determining whether to modify the disposition of children found to have engaged in delinquent conduct. In re D.R., 193 S.W.3d 924, 924 (Tex. App.—Dallas 2006, no pet.); In re G.W., 396 S.W.3d 202, 204 (Tex. App.—El Paso 2013, no pet.). We review the entire record to determine if the trial court abused its discretion by modifying a disposition. In re A.R.D., 100 S.W.3d 649, 650 (Tex. App.—Dallas 2003, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably or without reference to guiding rules or principles. In re D.R., 193 S.W.3d at 924. A trial court does not abuse its discretion when it bases its decision on conflicting evidence or if some evidence of substantive and probative character exists to support the trial court's decision. In re G.W., 396 S.W.3d at 204.
A.S. pleaded true to the allegations he violated the conditions of his probation by failing to comply with his curfew restrictions and by testing positive for the use of illegal drugs. Further, the trial court heard evidence that A.S. had been abusing illegal drugs for a number ofyears and had previously been placed on probation for the manufacture or delivery of a controlled substance. After being released from Medlock, A.S. failed to charge his electronic monitor, failed to comply with his curfew, did not regularly attend school, tested positive for the use of illegal drugs, assaulted another student and attempted to steal his gold chain, and attempted to steal his mother's television set. Ramos testified she had repeatedly counseled A.S. about his failure to comply with his conditions of probation. Both Ramos and the examiner who performed the psychological evaluation of A.S. thought A.S. needed a highly structured...
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