in the Matter of D.W., a Child ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-243-CV
IN THE MATTER OF D.W., A CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant D.W., a juvenile, appeals the trial court’s judgment revoking his
probation and committing him to the Texas Youth Commission (“TYC”). We
affirm.
Appellant was adjudicated delinquent for indecency with a child, his
sister, on June 19, 2006, and placed on two years’ probation. On May 24,
2007, the juvenile court extended appellant’s probation for six months and
ordered that he attend and successfully complete the Specialized Treatment for
1
… See Tex. R. App. P. 47.4.
Offenders Program (“STOP”), a long-term residential treatment program for
juveniles who have committed sexual offenses. Appellant did not make
satisfactory progress in the program, so he was discharged on April 14, 2008.
On May 30, 2008, after a hearing on the State’s motion to modify disposition,
the juvenile court revoked appellant’s probation and committed him to TYC.
In his first issue, appellant contends that the trial court abused its
discretion by finding that he violated a term of his probation. In essence, he
argues that he did not violate his probation for failing to complete STOP
because the evidence allegedly shows that he was “working toward[ ] his
goals,” “just needed more time,” was not “willfully failing to comply” with
STOP, and was not allowed to take a required polygraph examination pursuant
to section 54.0405(f) of the Texas Family Code. 2
Juvenile courts are vested with broad discretion in determining whether
to modify the disposition of children found to be engaged in delinquent
conduct.3 Absent an abuse of discretion, a reviewing court will not disturb the
2
… See Tex. Fam. Code Ann. § 54.0405(f) (Vernon 2008). Appellant
also claims that he was denied due process by the “arbitrary decision” of the
STOP administrators not to allow the last polygraph, but he has failed to
adequately brief this issue. Therefore, we need not address it. See Tex. R.
App. P. 38.1(i).
3
… In re J.O., 247 S.W.3d 422, 424 (Tex. App.—Dallas 2008, no pet.);
In re J.D.P., 85 S.W.3d 420, 426 (Tex. App.—Fort Worth 2002, no pet.).
2
juvenile court’s determination. 4 An abuse of discretion occurs when a juvenile
court acts unreasonably or arbitrarily without reference to any guiding rules and
principles.5
Our review of the record shows that appellant’s failure to complete the
STOP program was largely due to his own behavioral issues. STOP is organized
in three levels, through which the juvenile must progress by meeting specific
goals and curtailing negative behavior. By the time a juvenile reaches the third
level, he is expected to behave appropriately and is preparing for a successful
discharge from the program and re-entry into society. Appellant failed to reach
the third level. Jesus Reyes, the probation officer who oversees STOP, testified
that appellant failed to make any reduction in the frequency of disruptive
behaviors during the nine months that he was in the program. Reyes testified
that appellant was disruptive in the classroom, did not follow instructions,
reacted to motivational criticism with sulking and moping, made inappropriate
noises, was argumentative in gym class, and threatened to physically harm his
peers. Reyes further testified that, on average, a juvenile who successfully
4
… In re K.J.N., 103 S.W.3d 465, 465–66 (Tex. App.—San Antonio
2003, no pet.); In re J.D.P., 85 S.W.3d at 426.
5
… In re K.J.N., 103 S.W.3d at 466; In re T.K.E. 5 S.W.3d 782, 784
(Tex. App.—San Antonio 1999, no pet.).
3
leaves the program receives twenty office referrals for disciplinary issues.
Appellant received 140.
In addition, Carol Murley, clinical coordinator for STOP, testified that
appellant minimized his crime, lacked victim empathy, and admitted having
deviant fantasies about his sister. Murley summarized appellant’s progress as
moving “backwards.”
With regard to appellant’s complaint that he was prevented from
completing a final polygraph exam, the evidence shows that appellant had been
given a number of polygraphs and that the final exam he complains he did not
receive had been scheduled for at least ten days before appellant was
discharged from the program. Reyes testified that although the final polygraph
had been scheduled, appellant did not take it because the decision had been
made to discharge him from the program for his lack of progress.
Based on the evidence in the record, we hold that the juvenile court acted
within its discretion in revoking appellant’s probation. Appellant’s first issue is
overruled.
In his second issue, appellant argues that the trial court abused its
discretion by committing him to TYC because the commitment was not in his
best interest. He contends that other alternatives than TYC commitment
existed, including placing him back in STOP.
4
To support the removal of a juvenile from the community on a motion to
modify disposition, section 54.05(m) of the family code requires that the trial
court find 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.6
At the disposition hearing, Reyes opined that appellant’s mother’s ability
to properly supervise appellant was “questionable.” He further testified that
given appellant’s lack of progress in treatment and his need for a more
structured setting than what STOP could offer, it would not be in appellant’s
best interests to return him to the community. In addition, Murley testified that
appellant could not be properly supervised without being locked up. Finally,
although appellant argues that he needed to be placed back in STOP so that he
could continue to receive sex offender treatment, sex offender treatment is also
available at TYC.
6
… See Tex. Fam. Code Ann. § 54.05(m) (Vernon 2008).
5
We hold that the trial court acted within its discretion to commit appellant
to TYC. Accordingly, we overrule appellant’s second issue.
Having overruled both of appellant’s issues on appeal, we affirm the
judgment of the juvenile court.
PER CURIAM
PANEL: CAYCE, C.J.; LIVINGSTON and MEIER, JJ.
DELIVERED: June 25, 2009
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