in the Matter of D.T., a Juvenile ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00312-CV
___________________________
IN THE MATTER OF D.T., A JUVENILE
On Appeal from the 78th District Court
Wichita County, Texas
Trial Court No. 13147-JD-B
Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
I. Introduction
Appellant D.T. was twelve years old when he stipulated to and was adjudicated
delinquent for having committed aggravated sexual assault of a child by intentionally
or knowingly causing the sexual organ of a child under the age of fourteen1 to contact
his mouth or tongue, which would be a first-degree felony offense for an adult. See
Tex. Penal Code Ann. § 22.021(e). The juvenile court placed D.T. on two years’
probation and then modified his probation twice. See Tex. Fam. Code Ann. § 54.05.
In three issues, D.T., who is now fifteen years old, complains about the second
modification and disposition,2 arguing that the juvenile court abused its discretion
(1) by denying his motion for dismissal of the State’s modification petition, (2) by
finding that he violated his probation, and (3) by ordering his probation extended
until he turns eighteen. Because the record reflects no abuse of discretion, we affirm.
II. Discussion
A juvenile court is vested with considerable discretion in determining the
suitable disposition for a child who has been adjudicated as having engaged in
delinquent conduct and “in proceedings to modify an earlier disposition.” In re M.N.,
1
The record reflects that D.T.’s victim was a six-year-old relative at the time of
the offense.
2
In juvenile cases, “disposition” is “akin to sentencing and is used to honor the
non-criminal character of the juvenile proceedings.” In re D.L., 541 S.W.3d 917,
920 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
2
No. 02-18-00044-CV, 2019 WL 1715981, at *1 (Tex. App.—Fort Worth Apr. 18,
2019, no pet.) (mem. op.); see In re J.M., No. 02-19-00325-CV, 2020 WL 3987581, at
*2 (Tex. App.—Fort Worth June 4, 2020, no pet.) (mem. op.) (stating that the court
reviews a decision to modify a juvenile disposition for an abuse of discretion); see also
In re L.A.G.R., Nos. 07-14-00072-CV, -00073-CV, 2014 WL 5462540, at *3 (Tex.
App.—Amarillo Oct. 28, 2014, pet. denied) (mem. op.) (requiring probation violation
to be found by a preponderance of the evidence).
A juvenile court abuses its discretion when it acts arbitrarily or unreasonably or
without reference to guiding rules or principles. M.N., 2019 WL 1715981, at *1. It
does not abuse its discretion simply by basing its decision on conflicting evidence. In
re C.C., No. 02-17-00216-CV, 2018 WL 1865804, at *3 (Tex. App.—Fort Worth Apr.
19, 2018, no pet.) (mem. op.). We will not find that the juvenile court abused its
discretion so long as some evidence of substantive and probative character exists to
support its decision. Id. In conducting our review, we engage in a two-pronged
analysis: (1) did the juvenile court have sufficient information upon which to exercise
its discretion, and (2) did it err in its application of discretion? Id. We apply the civil
standards of review for the legal and factual sufficiency of the evidence3 to support a
3
Under the legal-sufficiency standard of review, we may sustain such a
challenge only when (1) the record bears no evidence of a vital fact, (2) the rules of
law or of evidence bar the court from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Shields
v. Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). In determining whether
3
disposition decision. In re B.R., No. 02-19-00328-CV, 2020 WL 3969556, at *2 (Tex.
App.—Fort Worth June 18, 2020, no pet.) (mem. op.).
A. Motion for Dismissal
In his first issue, D.T. argues that the juvenile court abused its discretion by
denying his motion for dismissal. In his second issue, he complains that the juvenile
court abused its discretion by finding that he violated a probation condition regarding
sex offender treatment, relying on the same argument that he makes in his first issue.
1. Background
During the modification portion of the State’s case, the juvenile court took
judicial notice of the pleadings that had been filed in the case.
legally sufficient evidence supports the finding under review, we must consider
evidence favorable to the finding if a reasonable factfinder could and must disregard
contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co.
v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807,
827 (Tex. 2005). We indulge “every reasonable inference deducible from the
evidence” in support of the challenged finding. Gunn v. McCoy, 554 S.W.3d 645,
658 (Tex. 2018). Anything more than a scintilla of evidence is legally sufficient to
support a finding. See 4Front Engineered Sol., Inc. v. Rosales, 505 S.W.3d 905, 909 (Tex.
2016).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing all
the pertinent record evidence, we determine that the credible evidence supporting the
finding is so weak, or so contrary to the overwhelming weight of all the evidence, that
the finding should be set aside and a new trial ordered. Pool v. Ford Motor Co.,
715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
4
In its original petition, the State alleged that D.T. had committed an April
2018 aggravated sexual assault of a child, and in July 2018, the juvenile court placed
D.T. on twenty-four months’ probation that contained both regular and sex-offender
conditions. Condition (z) of D.T.’s regular probation conditions required him to
attend, participate in, and successfully complete the sex offender treatment program.
Although D.T.’s probation was set to end in July 2020, it was made “subject to
subsequent extensions and additional proceedings” until he reached age 18.
In February 2019, the State petitioned to modify and extend D.T.’s disposition,
alleging that in January 2019, D.T. had failed to complete the sex offender treatment
program, violating Condition (z). D.T. stipulated that he had “fail[ed] to complete Sex
Offender Treatment Program to the satisfaction of the treatment provider,” and in
April 2019, the juvenile court entered a “Modified Order of Probation until July 1,
2020.” The April 2019 order was originally titled “Modified Order of Probation until
18th Birthday,” but “18th Birthday” was lined out and replaced by “July 1, 2020,” the
same ending date as D.T.’s original twenty-four months of probation.
The April 2019 order added some conditions.4 As in the earlier order, it stated
that D.T. would be “subject to subsequent extensions and additional proceedings until
[he] is eighteen (18) years of age.” Also as in the earlier order, D.T. was required to
4
The new conditions provided, among other things, that D.T. would be placed
in the probation department’s custody, that he would remain in the juvenile detention
center until placed in the residential placement program, and that he would
successfully complete the residential placement program.
5
attend, participate, and successfully complete the sex offender treatment program.
Condition #21 of the additional sex-offender conditions—the condition at issue in
the instant appeal—was included verbatim from the earlier order and required D.T. to
complete treatment within two years of disposition and show moderate
progress as determined by the treatment provider and supervising
probation officer in the sex offender specific program within one year of
beginning the program. If it is not determined that [D.T.] has made
adequate progress, a violation of probation may be charged against
[D.T.]
The record does not reflect that D.T. objected to any of the conditions or sought
clarification of any of them.
A week later, D.T. was placed in a juvenile “Boot Camp,” where he remained
until January 2020. After almost nine months, on January 6, 2020, a juvenile probation
officer requested D.T.’s release from boot camp based on D.T.’s having “successfully
completed his . . . stay at the placement facility.”
Five months after D.T.’s release from boot camp and return to the sex-
offender treatment program, the State filed a new petition to modify and extend
D.T.’s disposition. See J.M., 2020 WL 3987581, at *2 (explaining that modification of
juvenile disposition is divided into two phases—the first involves determining
whether the juvenile has violated his probation and the second involves determining
the necessary modification). In its petition, the State alleged that on May 21, 2020,
D.T. had violated Condition #21 “by failing to complete treatment within 2 years of
disposition and/or show moderate progress as determined by the treatment provider
6
and supervising probation officer in the sex offender specific program within one year
of beginning the program in violation of a valid court order signed on April 3, 2019.”
The trial court held a hearing on the petition in September 2020—after the July
1, 2020 expiration of D.T.’s probation. See Tex. Fam. Code Ann. § 54.05(l) (providing
that as long as a motion for modification is filed before the supervision period ends,
the trial court has until the first anniversary of the probation period’s expiration date
to extend the probation period). D.T. continued to participate in the sex-offender
treatment program after his probation expired. At the hearing, D.T. pleaded not true
but did not otherwise object or raise special exceptions to the State’s petition.
2. The State’s Modification Evidence
Dr. David Sabine, a clinical psychologist, licensed sex offender treatment
provider, and director of the Wichita County Juvenile Probation Department’s Sex
Offender Treatment Program,5 testified that he had been supervising D.T. He
explained that in the sex offender treatment program, offenders worked to
understand their sexual behavior problems and the cognitive errors that supported
such behavior and also worked on relapse prevention and the development of
5
Dr. Sabine had been the director of Wichita County’s sex offender treatment
program for twenty years. He had a bachelor’s degree in religion and philosophy from
Southwestern Nazarene University, a master’s degree in divinity from Nazarene
Theological Seminary, and a master’s degree in psychology and doctorate in clinical
psychology from the University of Louisville. He did his predoctoral fellowship at
Yale University and spent his postdoctoral year at Wichita Falls Rehabilitation
Hospital in “rehab medicine.”
7
empathy. He required offenders to attend group therapy and group counseling, to
demonstrate an understanding of various content areas, and to complete polygraph
examinations. Dr. Sabine stated that an offender is considered for graduation from
the program “when [he] complete[s] an exit interview that reflects [his] mastery” of
the coursework.
Dr. Sabine stated that in his professional opinion, D.T. had not completed the
sex-offender-treatment-program portion of his probation. He observed that D.T. had
failed to
demonstrat[e] mastery over his sexual impulses and his sexual
preoccupation, both in terms of his thinking and his behavior. At the
time that this, um, expired, his term, there still are important things he
needs to do in order to be safe. . . . He’s making progress, but he’s not
there yet, and there are things in his May polygraph that were very
concerning that we felt like we needed to hold him over.
Dr. Sabine opined that there was a higher risk that D.T. would reoffend if he did not
continue in the program. He acknowledged that D.T. had passed five polygraphs in a
row.
Dr. Sabine testified that D.T. “came into the program in April of 2018, and was
there for a time, went away to a residential treatment for a time and then returned to
us this last year, and he’s been in the program ever since.” During cross-examination,
Dr. Sabine elaborated, stating that D.T. went to the residential boot camp “because of
treatment failure at one point.” The record reflects that D.T. was ordered to the boot
camp on April 10, 2019.
8
During cross-examination, Dr. Sabine stated that in some areas D.T. had made
excellent progress but in others he had “made very little progress.” He testified that
this did not amount to an average of “moderate overall” because “this would not be
something you could average because the things where he’s not made progress may be
considered high risk in terms of the future.” He opined that D.T. needed more time
in the program.
Brian Box, D.T.’s supervising probation officer, testified that he and Dr. Sabine
monitored D.T. and that D.T. had not completed the sex offender treatment portion
of his probation. On cross-examination, Box agreed that D.T. had participated in the
sex offender treatment program, had done the things that were asked of him as part
of it, and had made some progress in the program.
At the conclusion of the State’s modification case, D.T.’s counsel moved for
dismissal of the petition. He pointed out that the State’s evidence showed that D.T.
had made progress and argued the April 3, 2019 disposition ordered D.T. to complete
the treatment program within two years of that disposition, which would make the
completion date not July 1, 2020, but April 3, 2021, a date still in the future. D.T.’s
counsel argued, “He has two years to complete that treatment [program]. He’s made
progress. He hasn’t been removed from the program. Therefore . . . he cannot be
violated based on failure to complete the program.”
9
The juvenile court denied D.T.’s motion, stating that the April 2019 order did
not extend the original two years to April 2021, that D.T.’s “probation ran [until] July
1 of 2020,” and that there was sufficient evidence to deny the motion.
3. Analysis of D.T.’s First Issue
In his first issue, D.T. complains that the State “presented no evidence
whatsoever indicating a violation of a reasonable and lawful order of probation,”
relying on the construction of Condition #21 that he presented to the juvenile court
during the hearing.
We disagree. Notwithstanding D.T.’s argument that the plain language of
Condition #21 gave him a two-year period from disposition (and the State’s argument
on appeal that the condition’s plain language did not include the words “modified” or
“amended” before the disposition and therefore did not extend his time to complete
the program into 2021), the record reflects that D.T. failed to comply with the
remaining portion of Condition #21: “show moderate progress as determined by the
treatment provider and supervising probation officer in the sex offender specific
program within one year of beginning the program.”6 [Emphases added.]
D.T. began the program in April 2018. In February 2019, ten months later, the
State sought to modify and extend his probation the first time on the basis that D.T.
6
The State also reminds us that probation is a contract, see Dansby v. State,
448 S.W.3d 441, 447 (Tex. Crim. App. 2014), and that contracts are to be construed
based on their plain language. Compass Bank v. Calleja-Ahedo, 569 S.W.3d 104,
114 (Tex. 2018).
10
had failed to complete the sex offender treatment program, referencing Condition
(z). 7 On April 3, 2019, D.T. stipulated to having violated this probation condition in
violation of the July 2018 disposition. The juvenile court found that D.T. had violated
his probation as alleged by the State and “as amended at trial,”8 and it entered the
modified order of probation. The order’s probation period did not change,
however—its end date was still July 1, 2020. D.T. then spent almost nine months
(April 10, 2019–January 6, 2020) in a boot camp treatment program and five more
months in the sex offender treatment program (January–May 2020) before the State
filed its second petition for modification and to extend disposition in June 2020. The
State alleged in its second petition that
on or about May 21, 2020 . . . [D.T.] did then and there fail to comply
with . . . [Condition] #21 by failing to complete treatment within 2 years
of disposition and/or show moderate progress as determined by the
treatment provider and supervising probation officer in the sex offender
specific program within one year of beginning the program in violation
of a valid court order signed on April 3, 2019.
Without reaching the parties’ construction arguments about the “2 years of
disposition,” see Tex. R. App. P. 47.1, we conclude that the juvenile court did not
In his appellant’s brief, D.T. states that the State’s February 22, 2019 petition
7
to modify and extend disposition alleged “that D.T. failed to complete the Sex
Offender Treatment Program as required by Condition 21.” However, the State’s
February 22, 2019 petition alleged a violation of Condition (z). Condition (z) and
Condition #21 are not identical, although they both require attending, participating
(making progress), and completing the sex offender treatment program.
8
The record does not reflect how the State’s petition was amended at trial in the
first modification.
11
abuse its discretion by denying D.T.’s motion for dismissal and by finding that D.T.
had violated the “moderate progress . . . within one year of beginning” portion of the
condition9 in light of D.T.’s removal from the program and placement in boot camp
and Dr. Sabine’s and Box’s testimonies that D.T. had not made adequate progress to
discharge him from the program. We overrule D.T.’s first issue and turn to the
evidence he presented before reaching his second issue.
4. D.T.’s Modification Evidence
During D.T.’s case, Dr. Sabine testified that D.T. had actively participated in
the sex offender treatment program and “had tried to be honest and open and
straightforward.” Dr. Sabine credited D.T.’s earnestness and sincerity but noted that
D.T. had “disclosed many things in the polygraphs that are very concerning.” Some of
these disclosed items included D.T.’s “unusual sexual interest . . . in horses,” his
compulsive masturbation, his rape fantasies, and his admitting to having thought
about his victim “as recently as May.” D.T. had also admitted to tasting and eating his
own feces.
9
To the extent that D.T.’s probation had already been modified once based on
a similar but differently worded and numbered condition, see Rains v. State, 678 S.W.2d
308, 309–10 (Tex. App.—Fort Worth 1984, pet. ref’d) (quoting Rogers v. State,
640 S.W.2d 248, 252 (Tex. Crim. App. 1981)), D.T. did not raise any due process
objections in the juvenile court, and he does not raise any on appeal. See Tex. R. App.
P. 33.1; In re C.D.H., 273 S.W.3d 421, 425 n.4 (Tex. App.—Texarkana 2008, no pet.)
(stating that within the context of juvenile probation revocation hearings, a due
process complaint must have been raised in the trial court to preserve error for
appellate review).
12
Dr. Sabine testified that D.T. attended group therapy with other adjudicated
youth sex offenders every Tuesday and Thursday. Dr. Sabine said that he also held
family meetings with D.T. and his parents that would last from 10 to 15 minutes “if
everything is kind of going along” or could last up to 45 minutes when the family had
concerns.
Dr. Sabine testified that “from early on” he had suspected that D.T. had autism
and that he had spoken with D.T.’s family about D.T.’s autism issue “a number of
times,” but for the first two years, Dr. Sabine’s treatment summaries did not reflect
his suspicion. He stated that an autism evaluation did not reveal evidence of autism,
but that evaluation was based on forms completed by D.T.’s parents, and those forms
“came back negative.” Dr. Sabine explained that the autism evaluation had required
D.T.’s parents to have “openness and insight into those behaviors in order to find
[D.T.] positive” for autism.
Dr. Sabine testified that before D.T. went to boot camp, 10 he had spent hours
trying to find treatment facilities that treated children with both sexual offending
behaviors and autism-related behaviors and “looked up research on how to treat kids
who have sex offense behaviors and autism” because he was concerned that D.T.
might not find the right placement. However, until May 2020, none of Dr. Sabine’s
10
Dr. Sabine acknowledged that a boot camp counselor who had treated D.T.
had been arrested for child pornography but said that he did not know the counselor’s
sentence. D.T.’s mother testified that the boot camp counselor had pleaded guilty and
accepted a fifty-year sentence and that she had serious concerns about the boot camp.
13
treatment summaries acknowledged that D.T. was autistic. In the May 2020 summary,
Dr. Sabine stated, “[D.T.] clearly demonstrates, in my opinion, evidence of autism
spectrum disorder, and this should be taken into account in terms of treatment.”
Dr. Sabine said that D.T. had maintained his grades and mandatory family
participation but that “what’s been especially hard is that part about the impulses and
the thoughts that he’s acknowledged.” Dr. Sabine opined that because D.T. suffered
from autism spectrum disorder, it was difficult for him to master some of the
treatment concepts because of the “sort of black and white sort of concrete way that
[he] thinks” and D.T.’s social-interaction and social-connection problems. Dr. Sabine
stated, “Children who don’t have autism may have an easier road to empathy,” while
autistic offenders might not understand the normal connection between their
behavior and harm to the victim. Dr. Sabine explained that D.T. struggled with
emotional intelligence, with understanding the consequences of his behavior, and with
interacting with others. He explained that because of this additional autism-related
risk factor, D.T. required more time in the program, the goal of which was to help
D.T. “reach[ ] an acceptable level of safety for himself and the community.”
Dr. Sabine said that he did not have a formal written treatment plan for D.T.
“other than his psych evals” and quarterly updates “of where we’re going and what
we’re planning to do next.” He said, “[I]n a sense, those . . . quarterly reports
represent [D.T.’s] treatment plan.” He stated that the quarterly summaries contained
D.T.’s relapse prevention plan, which was “to work on thoughts and behaviors that
14
have inclined him toward offending and to reduce those behaviors,” and that D.T.
could recite the plan “verbatim.” Dr. Sabine did not have a specific document setting
out the relapse prevention plan but stated, “[I]t would be very easy to generate. I
could give you a paragraph. That’s about how much it would take.”
Dr. Sabine acknowledged that to comply with D.T.’s probation, D.T.’s family
had been living in separate households since early 2018, with D.T. and his father
living in one household and his mother and the victim in another. Dr. Sabine stated
that “every effort has been made to reunify the family short of sending [D.T. to a
reunified] home prematurely.” When asked to list his efforts, he stated that he had
met with the family and expressed to them his concerns and things that had to change
in D.T.’s thoughts and behavior for him to safely return to a reunified home. On
cross-examination, when the prosecutor asked why D.T. had not been reunited with
his whole family, Dr. Sabine replied, “Because . . . his victim is in the home and he
hasn’t gotten to the place in treatment where he can safely be in the home.”
Dr. Sabine used movies with his group therapy patients. In 2020, he showed
them “Searching for Bobby Fischer,” a ninety-minute movie that required two group
sessions to watch. He also showed them “Call of the Wild,” another two-session
viewing. He agreed that D.T. had seen the 2012 version of “Les Miserables,” another
two-session movie, twice because of how long D.T. had been in the program and
“because that’s an especially important film for [the] kids to see.” When questioned
about “Les Miserables,” Dr. Sabine acknowledged that there was an implied rape
15
scene and that prostitution was implied and discussed directly but said that “[i]t’s part
of the exploitation we discuss in . . . covering . . . the substance of the film.”
In explaining his use of movies with his group therapy patients, Dr. Sabine
stated,
One of the things that’s most difficult with these guys is kind of getting
past their defenses. They’re very defended boys who come with a lot of
resistance. And one of the things we know, going all the way back to the
parables of Jesus, is that stories have the ability to work beneath those
defenses to help us gain a sense of empathy and understanding that does
not come through sort of being preached at and lectured at in a didactic
setting.
So interspersing session after session after session of bearing
down and doing disclosures and all the other things we do, to bring this
in is a -- in my view, a very helpful tool. And so we discuss the movie.
We discuss what they should take from it or what they could take from
it. We try to get them to develop critical thinking skills to say this is what
went on, this is what’s important, and this is how it relates. We always
come back to how does it relate to you, specifically, as a person who’s
acted out sexually and is a sex offender?
L.T., D.T.’s mother, testified that since D.T. had been on probation, he had
done everything he had been asked to do. She stated that he had progressed as far as
the program’s standards went but opined that in two years, the program “hasn’t
helped him any.” She expressed her concerns about the types of things D.T. had been
exposed to in the program, stating,
The very first group he attended, he called me when he got home and
said, Mama, do you know people have sex with animals? My son is very
easily swayed. He’s very easily persuaded to do things. Um, he’s autistic.
He’s a follower, and he does what other people do. Um, he attempts to
be friends with everybody, and if that includes doing something -- . . . If
he thinks doing something stupid will make him a new friend, then he’ll
16
do it. But that’s his mentality. He’s – He’s a wonderful young man. He
made a stupid mistake.
L.T. also stated that she had been unaware that Dr. Sabine had diagnosed D.T.
with autism because Dr. Sabine had told her and D.T.’s father that D.T. was not
autistic. L.T. said that she had urged Dr. Sabine to test D.T. for autism for two years.
From her perspective, D.T.’s treatment program had not changed with the autism
diagnosis, and he had not been diagnosed with autism prior to his boot-camp
placement. L.T. stated that when D.T.’s probation officer had looked for a placement
for him, she and D.T.’s father were “led to believe that they could not find a suitable
place for him that would accept him with autism and the crime he had been accused
of. Then they determined that he could attend this boot camp because he did not
have autism.”
L.T. testified that one of D.T.’s sex-offender probation terms was that he could
not change sex offender treatment providers and said “yes” when asked whether her
understanding was “that he either sinks or swims with Dr. Sabine’s program.” She
agreed on cross-examination that she was not an expert in sex offender treatment, but
she disagreed with Dr. Sabine’s treatment for D.T. She acknowledged that she had
voiced those concerns to D.T. but disagreed that this might impede D.T.’s treatment
progress.
After putting on his modification evidence, counsel for D.T. again argued that
D.T. had not violated Condition #21 because he had made moderate progress and
17
that the “two years from the date of disposition” did not expire “until April of 2021”
even though the April 2019 order expressly terminated D.T.’s probation on July 1,
2020. He asserted,
The State wrote the term. They could have crafted it any way they
wanted to. They could have said complete sex offender treatment by July
of 2020. They did not. They could have crafted it in many ways. But the
way it’s written, he’s not in violation. He’s made moderate progress. And
according to Dr. Sabine, if he just continues on keeping on, he’s going to
get where he wants him to be.
The prosecutor then responded that D.T. had to show moderate progress in all areas
of his sex offender treatment program, not just one area, and that D.T. had failed to
do so within the allotted time: “He’s not done that within the year. He’s not done that
within the two years.”
5. Analysis of D.T.’s Second Issue
D.T. raises the same argument about Condition #21’s “within 2 years of
disposition” language in his second issue as he did in his first. For the same reasons
set out in our review of D.T.’s first issue, but based on our review of all of the parties’
modification evidence, we conclude that the trial court did not abuse its discretion by
finding that D.T. violated Condition #21 and by denying his motion for dismissal. We
overrule D.T.’s second issue.
B. Sufficiency of the Evidence to Support Extension
In his third issue, D.T. argues that the trial court abused its discretion by
extending his probation until he turns eighteen because the evidence is legally and
18
factually insufficient to support the extension. We incorporate the modification
evidence above and now review both parties’ disposition evidence.
1. Social Histories11
Before the disposition hearing began, the juvenile court took judicial notice of
all of the contents of its file except for a supplemental social history filed on
September 18, 2020, which D.T.’s counsel had not received. See Tex. Fam. Code Ann.
§ 54.04(b) (stating that on or before the second day before the disposition hearing, the
court shall provide the child’s attorney and prosecutor with access to all written
matter to be considered by the court in disposition).
D.T.’s June 2018 social history contained D.T.’s statement about the original
offense—that he had pulled aside the six-year-old victim’s underwear and licked her
female sexual organ with his tongue—because he was curious. It also stated that he
had not displayed any behavioral problems at school or in detention, that he made
good grades, that he participated in jujitsu and wrestling, that he was active in his
church, and that he had been respectful and cooperative with the juvenile probation
department.
Dr. Sabine conducted a psychological evaluation of D.T. in 2018 and diagnosed
him with attention deficit hyperactive disorder, hyperactive-impulsive type-mild. Dr.
11
Under Section 54.04, at a disposition hearing, the juvenile court “may
consider written reports from probation officers, professional court employees,
guardians ad litem . . . , or professional consultants in addition to the testimony of
witnesses.” Tex. Fam. Code Ann. § 54.04(b).
19
Sabine’s October 10, 2018 addendum noted that D.T.’s parents had completed the
Social Responsiveness Scale, 2nd Edition (SRS-2), the Gilliam Autism Rating Scale
(GADS), and the Gilliam Asperger’s Disorder Scale, 3rd Edition (GARS-3) and that
all three test results “were within normal limits.” He also included the results of D.T.’s
Rorschach Inkblot Test, which were “consistent with [D.T.’s] presentation in terms of
his limited interest in others, and limited ability to form close attachments, as well as[]
having difficulty identifying with the thoughts and feelings of others.”
The juvenile court ordered D.T. detained for a probable cause hearing in
March 2019. D.T.’s supplemental social history from March 2019 reflected that on
September 13, 2018, D.T. had been referred for a probation violation after he
provided “deceptive” responses to a polygraph examination. The September
2018 probation department recommendation also stated that, regarding the
September 13, 2018 polygraph, D.T. had “admitted to touching five or six year old
females vagina’s [sic] over their clothing while at martial arts classes” and that in his
post-polygraph interview, he admitted that prior to being placed on probation, he had
seen “a rape scene on a Law and Order TV show. Afterwards, he tried acting it out
with his adjudicated victim. He said he pinned her to the wall and ‘dry humped’
her.”12 D.T. also disclosed that he had his dog lick his penis during the week before
12
The July 2018 order stated, “The District Attorney agrees not to pursue any
modification, enhancement, or new charges for any conduct involving [D.T.] and [his
victim] if occurring prior to April 10, 2018.”
20
his September 2018 polygraph. In a December polygraph, D.T. again “admitted to
touching [the] dog inappropriately. He said that he touched the dog’s vagina and
played with her nipples.”
On January 31, 2019, Dr. Sabine removed D.T. from the sex-offender
treatment program and recommended placing him in boot camp because
[D.T.] does not seem to be connected to shame and seems to enjoy
talking about his offenses and does so in a very matter of fact way. It
was noted that though being quite intelligent, [D.T.] has very little insight
and no emotional connection to his behavior and its consequences. It
was also noted that [D.T.’s] sexual fantasies are deviant and involve [his
victim]. He also has fantasized about rape. Residential treatment is
recommended so that [D.T.] can deal with his issues in a more
comprehensive way and maintain safety for the community in the
meantime.
2. The State’s Disposition Evidence
The prosecutor reoffered Dr. Sabine’s testimony, and Box, D.T.’s probation
officer, recommended that D.T. be extended on probation until his eighteenth
birthday and that he continue sex-offender treatment with Dr. Sabine. Box said that
D.T. had made admissions to him and his supervisor about “fantasizing about sex,
anal sex with horses, . . . masturbat[ing] with his [victim’s] pillow . . . and fantasiz[ing]
about having sex with her.”
Box stated that D.T. had been deemed a treatment failure when he was sent to
boot camp but that since his return, “he has not been deemed a treatment failure.”
When asked during cross-examination about whether Dr. Sabine was qualified to
diagnose autism, Box said, “I can’t speak to his qualifications.” He acknowledged that
21
Dr. Sabine had cancelled family meetings and said that he was not aware of any
changes in Dr. Sabine’s treatment plans for D.T. since determining that D.T. had
autism.
3. D.T.’s Disposition Evidence
Before beginning his case, D.T. informed the juvenile court that he was asking
for a ruling of “no disposition” and that he would be putting on evidence of
alternative treatments available to him if no disposition was ordered.
D.T.’s father D.E.T., a retired police officer, stated that D.T. had been in
martial arts training since he was three years old, that D.T. was a straight-A student,
and that D.T. went to boxing practice every weekday. He stated that D.T. had some
wrestling skills that the family hoped would someday result in a college scholarship.
D.E.T. also testified that as a term of D.T.’s probation, he and D.T. lived in one
household while D.T.’s mother and D.T.’s victim lived in another household and that
they had done so for “a little over two years.” D.E.T. stated that he and L.T. had done
everything required by D.T.’s probation. He also stated that although D.T. had
attended each of his group sessions, Dr. Sabine “usually” gave no excuse when he
cancelled sessions. D.E.T. cited as an example that Dr. Sabine had missed a group
meeting within the last month without explanation. He opined that he and L.T. could
provide a better treatment program for D.T. than Dr. Sabine.
D.E.T. stated that he had not known D.T. was autistic until Dr. Sabine told
them “almost a year-and-a-half, two years ago” and that he thought it should have
22
been pursued but that it was not. D.E.T. said that Dr. Sabine’s May 2020 treatment
summary was the first time Dr. Sabine had said more than that he just suspected
autism.
On cross-examination, D.E.T. said that the house in Oklahoma where L.T. and
the victim currently lived, and where he and L.T. wanted to reunify the family, had
video cameras everywhere but the bathroom and closet. He said that the victim would
be safe from molestation because he and L.T. would supervise D.T. and never let
D.T. and his victim be alone together.
D.T. also offered character testimony from a county commissioner who had
gone to church with D.T.’s family for the last ten years, an attorney who had coached
D.T. in judo, D.T.’s head judo coach, and D.T.’s jujitsu instructor, each of whom
knew the family on a personal level and believed L.T. and D.E.T. would provide a
committed course of rehabilitation for D.T.
On cross-examination, the jujitsu instructor agreed with the prosecutor’s
summary that D.T. was “actively learning how to use advanced techniques to subdue
people and wrestling them and keeping them where he wants them,” but he added
that the primary focus was self-defense and that D.T. was a “white belt, still a
beginner.”
23
Rose Boehm, a licensed professional counselor, testified both as a friend of
D.T.’s family and as an expert.13 Among other things, in her 50 years of practice,
Boehm had provided individual and group therapy for child and sexual abuse victims
and their families and had performed sex offender evaluations, including working for
Denton County’s Children’s Advocacy Center in sex offender treatment.
Boehm had worked with autistic children who were sex offenders. She stated
that autistic children who are sex offenders require individual therapy instead of group
therapy because, based on the way most groups are set up, autistic children “are
exposed to the descriptions of other people’s sexual offenses, and they can be quite
impressionable” and subject to suggestion in group settings. When she worked for
Denton County in sex offender treatment at the Children’s Advocacy Center, the two-
year program she used resulted in 90-to-95 percent successful completion by the
children in the program who were incest offenders.
Boehm opined that group therapy was not an effective way to treat D.T. Dr.
Sabine’s use of the 2012 version of “Les Miserables” to treat juvenile sex offenders
concerned her because of the film’s depictions of sexual intercourse and prostitution.
Boehm stated that a treatment program for a child sex offender should be
written down, shared with the parents, shared with the child, and shared with the
13
Boehm had a bachelor’s degree in preclinical psychology and a master’s
degree in clinical psychology from the University of North Texas. She had also been a
registered clinical psychologist in Australia and stated that she had testified as an
expert several hundred times.
24
probation officer—on hard copy—and that the program should be periodically
revised as goals were accomplished. She stated that a relapse prevention plan could be
“quite elaborate” because the offender and therapist should identify problematic
situations and feelings and ways to exit those situations. It was something the
offender should carry around with him so that in a novel or uncertain situation, he
could refer to the plan and develop an exit strategy.
Boehm opined that D.T. “probably needs somebody who specializes in
working with high level autistic children who’s also familiar with some of these other
behavior problems that go along with that” and that just continuing D.T. in Dr.
Sabine’s program of group therapy, polygraphs, and family meetings would not result
in his rehabilitation. She stated that the best way to handle family reunification was
how Denton County did it: “The children are returned to the family after an offense
like this as soon as there is a safety plan and as soon as there are alarms on the doors,
and that usually was within a few days of th[e] hearing.” She was concerned about
D.T.’s family’s being separated for so long because “any child in that kind of
program[] needs a very, very stable home situation and needs both those parents there
to help him.” Boehm said that it would be unethical for her, as a family friend, to be
D.T.’s counselor but that she could help his family find resources to treat him.
During cross-examination, when asked whether there would be any supervising
authority over D.T. if he were immediately dropped from probation, Boehm replied
25
that his parents L.T. and D.E.T., who “didn’t know about [the abuse] before,” would
monitor him.
L.T., who had been employed by a county jail until an inmate assault rendered
her permanently disabled, testified that if the juvenile court ruled “no disposition,” the
family would reunite in Oklahoma, where they had alarmed the doors of D.T.’s and
the victim’s bedrooms and had installed cameras throughout the house. L.T. testified
about her own experience as an incest victim and stated that D.T. needed intense,
lifetime rehabilitation. She had already made appointments for D.T. with a psychiatrist
to monitor his medication and a psychologist to modify his behavior and to help him
understand the consequences of his actions and prevent further actions; Boehm had
approved both providers. L.T. stated, “I know that [D.T.] is mentally ill, and I think
that he needs help. I don’t think he needs punishment.” She opined that the progress
D.T. had made was at boot camp, not in Dr. Sabine’s program.
L.T. stated that the family meetings with Dr. Sabine had only been around
15 minutes once a month and were sometimes cancelled by him without notice. She
testified that it concerned her that they were watching movies during group therapy
and that she had watched “Les Miserables” and “was sickened by it.” She stated that
D.T. was very impressionable and that the movie was inappropriate because it
“glorified” prostitution and rape and the “perpetrator laughed and got away with it.”
L.T. stated that she would “absolutely” do everything in her power to make sure D.T.
was completely rehabilitated and a productive member of society.
26
On cross-examination, when asked whether she had taken any initiative to seek
additional counseling for D.T., L.T. said that she had been “told that [she] couldn’t
because that would violate his probation because it would appear that [she] was
attempting to change providers.” 14
D.T. recalled Box, who agreed that Dr. Sabine was the primary sex-offender
treatment provider and who acknowledged that if D.T. had had another sex-offender
treatment provider during his probation, “[t]here might be a problem between Dr.
Sabine and the other treatment provider,” and in such a case, the probation
department would defer to Dr. Sabine. He also agreed that it was entirely within Dr.
Sabine’s discretion, “in conjunction with the Department,” as to whether D.T. had
completed his treatment or showed moderate progress. On cross-examination,
however, he stated that D.T. could have sought additional, non-sex-offender,
counseling.
14
One of D.T.’s sex-offender probation conditions stated,
Juvenile shall not change treatment programs. All treatment will be
provided by the sex offender treatment provider approved by the
Juvenile Board and only said treatment provider will be considered by
the Juvenile Probation Department in evaluating said juvenile’s
compliance or non compliance with the terms and conditions of said
juvenile’s probation and/or successful completion of treatment.
Another condition stated that he would have to sign waivers of confidentiality
to allow his supervising probation officer to communicate “with other professionals
involved in juvenile’s supervision and treatment, and to allow all professionals
involved to communicate with each other. This will include a release of information
to the therapist of the victim(s).”
27
4. The Parties’ Arguments and the Juvenile Court’s Conclusion
D.T.’s counsel argued that the State had not offered D.T. a program that would
allow him to be successful and that the juvenile court should issue an order of no
disposition, allow the family to reunite, and allow D.T. to undergo the treatment
arranged by his mother.
The prosecutor replied that instead of finding D.T. a counselor during his
probation, his parents had allowed him to be trained in jujitsu, stating, “You have a
sex offender who is learning how to grapple and hold people down.” He argued that
L.T.’s treatment plan for D.T. was “all based on speculation,” and he asked the
juvenile court to continue D.T.’s probation until his eighteenth birthday.
The juvenile court found that D.T. had violated his probation, found that D.T.
needed rehabilitation and that he and the public needed protection, and signed an
order of disposition and modified order of probation to run until D.T.’s eighteenth
birthday. In a letter to the parties, the juvenile court expressed that it was “torn
between the unification of [D.T.’s] family and protecting the victim” and that it was
unwilling to release D.T. from probation based on the nature of D.T.’s disclosures—
particularly about his victim—and Dr. Sabine’s testimony that “although [D.T.] is
making progress in some areas, he is still high risk to reoffend.” The juvenile court
then stated,
I also believe that [D.T.] is not receiving all the treatment that he needs
in order to fully rehabilitate. I am going to extend [D.T.’s] probation
until his 18th birthday and he is to remain in the sex offender treatment
28
program with Dr. Sabine, as I am bound by Section 54.0405 . . . to order
treatment with a program specified by the Department.[15] I will also
order that [D.T.] begin counseling with a health professional that
specializes in autism. I expect the autism counselor and Dr. Sabine to
cooperate in [D.T.’s] treatment and develop a plan that is tailored to
[D.T.’s] unique needs and increases his likelihood of success through the
program, including a determination of whether group or individual
counseling is more suited for [D.T.]. The Department is ordered to
provide quarterly reports to the Court regarding that plan and [D.T.’s]
progression in the program. Dr. Sabine will still be the primary care
provider and make the ultimate decisions about his care.
In addition, the Department is ordered to develop a plan for
reunification of [D.T.’s] family. They are to work with [D.T.’s] family to
develop a safety-based plan that permits [D.T.] to live in the household
again as soon as the treatment providers determine[] it is safe for him to
return.
If [D.T.] successfully completes the sex offender treatment
program before his 18th birthday, the Court will entertain a motion for
early release from probation.
5. Analysis of D.T.’s Third Issue
In his final issue, D.T. asserts that no evidence was presented that continuing
his probation as it existed at the time of the hearing would result in any further
progress in his rehabilitation and that such a continuation was contrary to the
recommendations of Boehm, his expert witness. In recounting the flaws in Dr.
Sabine’s program, however, D.T. ignores the juvenile court’s explanation of its
15
Section 54.0405(c) requires psychological counseling as a probation condition
for a child sex offender to be with an individual or organization that: (1) provides sex
offender treatment or counseling; (2) is specified by the local juvenile probation
department supervising the child; and (3) meets minimum standards of counseling
established by the local juvenile probation department. Tex. Fam. Code Ann.
§ 54.0405(c).
29
decision, in which it ordered the probation department to develop a reunification plan
and to provide quarterly reports to the court regarding a treatment plan customized to
D.T.’s unique needs.
Considering all of the above under the applicable legal and factual sufficiency
standards of review, the juvenile court had ample substantive and probative evidence
upon which to draw its conclusions that D.T. was still at a high risk of reoffending if
he failed to complete sex offender treatment and that his probation should therefore
be continued at least until his successful completion of the sex offender treatment
program, at which point he could move for early release from probation. 16 See Shields,
526 S.W.3d at 480; Pool, 715 S.W.2d at 635; C.C., 2018 WL 1865804, at *3.
Accordingly, we overrule D.T.’s final issue.
III. Conclusion
Having overruled all of D.T.’s issues, we affirm the juvenile court’s judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: October 28, 2021
16
As the factfinder, the juvenile court was the sole judge of the witnesses’
credibility and the weight to be given their testimony. Golden Eagle Archery, Inc. v.
Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
30