in the Matter of B.S., a Child ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00368-CV
IN THE MATTER OF B.S., A CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant B.S. appeals the judgment modifying his prior disposition and the
order committing him to the Texas Youth Commission (TYC). We will affirm.
In February 2010, B.S. was adjudged delinquent for unauthorized use of a
motor vehicle, a felony, and placed on probation for one year. One of the terms
of B.S.’s probation ordered him to ―attend and successfully complete counseling
for Drug/Mental Issues‖ at North Texas State Hospital in Vernon (the Hospital).
In April 2010, the State filed a motion to modify disposition, alleging that B.S. had
violated his probation ―by being unsuccessfully discharged from his court ordered
1
See Tex. R. App. P. 47.4.
placement on March 26, 2010 from the North Texas State Hospital in Vernon,
Texas.‖ The trial court conducted several hearings on the State’s motion, found
that B.S. had violated his probation, revoked B.S.’s probation, and ordered B.S.
committed to the TYC for an indeterminate period not to exceed his nineteenth
birthday.
In his only point, B.S. argues that the trial court abused its discretion by
modifying his disposition and committing him to the TYC because the State did
not prove that he had been ordered to successfully complete a treatment
program at the Hospital, that the disposition being modified was based on
felonious conduct, and that he violated a ―reasonable‖ order of the court.
A trial court’s modification of disposition is governed by family code section
54.05. Tex. Fam. Code Ann. § 54.05 (West 2008). When a juvenile’s prior
disposition is based on a finding that the juvenile engaged in a felony offense, the
trial court may modify the disposition and commit the juvenile to the TYC if the
court finds by a preponderance of the evidence that the juvenile violated a
reasonable and lawful order of the court. Id. § 54.05(f). Juvenile courts are
vested with a great amount of discretion in determining the suitable disposition of
children found to have engaged in delinquent conduct, and this is especially so in
hearings to modify disposition. In re D.R.A., 47 S.W.3d 813, 815 (Tex. App.—
Fort Worth 2001, no pet.). Consequently, we review an order committing a
juvenile to the TYC under an abuse of discretion standard. In re J.P., 136
S.W.3d 629, 632 (Tex. 2004). A trial court abuses its discretion when it acts
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arbitrarily or unreasonably or without reference to guiding rules or principles.
In re D.R., 193 S.W.3d 924, 924 (Tex. App.—Dallas 2006, no pet.).
Carnelius Carey testified at the hearing on the State’s motion to modify
disposition that he is a placement probation officer for Tarrant County Juvenile
Probation; that he transported B.S. to the Hospital on February 25, 2010; that he
received reports from the Hospital that B.S. ―was having some problems
controlling his anger, aggression, and being non-compliant with staff directions‖;
and that he was notified that B.S. was going to be unsuccessfully discharged
from the hospital on or about March 26, 2010.
John Hamby testified at the hearing that he is a social worker at the
Hospital; that he worked with B.S. on a daily basis during B.S.’s placement at the
Hospital; and that B.S. acted out, cursed, yelled at staff, kicked doors open, and
threatened staff and other patients at the Hospital. Hamby said that B.S. showed
improvement every day but that he was also involved in some type of ―negative‖
incident at least once per day. Hamby explained that it is the Hospital’s policy to
discharge a patient when the patient commits an ―intolerable infraction,‖ that B.S.
was aware of the policy, and that B.S. committed such an ―intolerable infraction‖
when he assaulted a staff member. Hamby testified as follows about the
incident:
Q. Are you aware of whether or not it was him being the
aggressor and trying to hit staff or if he was trying to get away
from staff and the staff was hit? Do you recall the
circumstances regarding that?
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A. According to the staff, [B.S.] was wanting to speak with me, I
believe, at the time, and he went back to my office. I was not
there, but the office was open, and he went in the office and
sat down. The staff asked him to leave and he did not so they
were escorting him out of the office, and that’s at the point
where he hit the staff.
Q. Okay. Are you aware if he was just trying to get away from
them or if he actually went forward and attacked the staff?
A. No, I don’t think he went forward and attacked them, because
they -- I think they put their hands on him to escort him out at
the time, so they would have been in close contact at that
point.
According to Hamby, it was B.S.’s actions that caused him to be unsuccessfully
discharged from the Hospital.
Dr. Enrique Del Campo testified at the hearing that he is a psychiatrist at
the adolescent unit of the Hospital, that B.S. was much more disruptive than the
average patient, and that he made the decision to discharge B.S. Regarding the
assault on the staff member, Dr. Del Campo testified that B.S. ―actually punched
one of the staff members in the face three times.‖
Based on the foregoing evidence, we hold that the trial court could have
reasonably concluded that the State proved by a preponderance of the evidence
that B.S. was unsuccessfully discharged from his placement at the Hospital on
March 26, 2010.
Without citing any authority, B.S. argues that the State did not prove that
he was ordered to successfully complete a treatment program at the Hospital nor
that the disposition being modified was based on felonious conduct because the
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State did not ―offer any court order as an exhibit,‖ ―request the trial court to take
judicial notice of a prior court order,‖ or ―present evidence of this during the
hearing on the merits of its modification motion.‖ Appellate courts reviewing the
modification of a juvenile’s disposition have looked to adult revocation cases for
guidance in determining the appropriate procedures in juvenile cases. In re
J.A.D., 31 S.W.3d 668, 670 (Tex. App.—Waco 2000, no pet.). In an adult
revocation proceeding, ―formal proof of the terms of the probation are not
necessary‖ and the ―State [does not have to] prove the conviction and the terms
of probation‖ ―as long as the judgment and order of probation appear in the
record on appeal.‖ Cobb v. State, 851 S.W.2d 871, 873–74 (Tex. Crim. App.
1993) (―[T]he nature of the continuing jurisdiction makes the proof of the
documents, which is an extension of the sentencing power of the trial court,
unnecessary.‖). In this case, the judgment of delinquency, order of probation
with placement, and terms of B.S.’s probation are all included in the record. 2
Accordingly, we hold that the trial court did not abuse its discretion by revoking
B.S.’s probation in the absence of the State’s introducing these documents into
evidence.
B.S. also argues that the trial court abused its discretion by revoking his
probation and sentencing him to the TYC because the State failed to establish
2
Notwithstanding this, the trial court observed that B.S. was on probation
for a felony offense and that he was ordered to successfully complete counseling
at the Hospital.
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that he violated a ―reasonable‖ order of the court, considering that the ―hospital
psychiatrist discharged [him] before sufficient time had passed to allow . . . [him]
to stabilize on needed medications‖ and that ―the lack of appropriate education
services obviously aggravated the situation.‖ See Tex. Fam. Code Ann.
§ 54.05(f) (requiring violation of reasonable and lawful court order). B.S. relies
on In re D.E.P., 512 S.W.2d 789, 792 (Tex. Civ. App.—Houston [14th Dist.] 1974,
no writ), a case in which the appellate court held that the trial court had abused
its discretion by concluding that the child had violated a reasonable order of the
court because a change in the child’s circumstances, which was beyond the
child’s control, made the trial court’s order unreasonable. As later recognized by
the same appellate court, however, ―[t]he conditions which caused the violations
in the D.E.P. case were out of the control of the child involved.‖ In re Rodriguez,
687 S.W.2d 421, 422–23 (Tex. App.—Houston [14th Dist.] 1985, no writ). Here,
the trial court could have reasonably concluded that it was not beyond B.S.’s
control to refrain from cursing at staff, yelling at staff, kicking doors, threatening
staff and other patients, and committing an ―intolerable infraction‖ by assaulting a
member of the staff, notwithstanding that he was prescribed medication for the
first time on March 5, 2010, and that he did not attend special education classes.
We hold that the trial court did not abuse its discretion by granting the
State’s motion to modify disposition and committing B.S. to the TYC.
Accordingly, we overrule B.S.’s sole point and affirm the trial court’s judgment
and order.
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BILL MEIER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: July 28, 2011
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