In the Matter of C.M.G.--Appeal from 289th Judicial District Court of Bexar County

No. 04-99-00044-CV
In the Matter of C.M.G.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 98-JUV-02722A
Honorable Carmen Kelsey,(1) Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 8, 1999

AFFIRMED

C.M.G., appellant, appeals the juvenile court's order of disposition committing her to a term

of six years to the Texas Youth Commission ("TYC"). In its original petition, the State alleged C.M.G. engaged in delinquent conduct, specifically, two counts of robbery with bodily injury. C.M.G. pled true to both counts. In one issue on appeal, C.M.G. alleges the evidence was insufficient to support the disposition removing C.M.G. from her home and placing her in TYC. Based upon our review of the record, we hold that the trial court did not abuse its discretion in committing C.M.G. to TYC. We affirm the judgment of the trial court.Factual and Procedural Background

Along with two co-offenders, fifteen year-old C.M.G. attacked two twelve year-old girls from behind as they exited the San Antonio Sunken Gardens Theater. C.M.G. and her companions repeatedly beat the girls to obtain jewelry and a purse. C.M.G. admitted kicking one of the victims in the head. C.M.G. pled true to two counts of robbery with bodily injury. At the adjudication and disposition hearings, the assigned probation officer recommended that C.M.G. serve probation until her eighteenth birthday, but remain in the custody of her father. The State opposed probation. Citing the serious and violent nature of the offense, and noting the inability of C.M.G.'s father to properly supervise his daughter, the court committed C.M.G. to TYC until she reaches the age of twenty-one.Standard of Review

A juvenile judge has broad discretion to determine the appropriate disposition for a child who has been adjudicated as having engaged in delinquent conduct. See In the Matter of A.S., 954 S.W.2d 855, 861 (Tex. App.-El Paso 1997, no pet.). Absent an abuse of discretion, the reviewing court will not disturb the juvenile court's determination. See In the Matter of K.L.C., 972 S.W.2d 203, 206 (Tex. App.-Beaumont 1998, no pet.); In the Matter of A.S., 954 S.W.2d at 861. An abuse of discretion occurs if the court acted arbitrarily or unreasonably - that is, without reference to guiding rules and principles. See In the Interest of S.B.C., 952 S.W.2d 15, 17 (Tex.App.-San Antonio 1997, no pet.). The guiding principles for committing a child to TYC are provided in the Family Code. The court is permitted to commit a child to TYC if: (1) it is in the child's best interest to be placed outside the home; (2) reasonable efforts have been taken to prevent or eliminate the need for the child's removal from home; and (3) while in the home, the child cannot receive the quality of care and level of support and supervision needed to meet the conditions of probation. See Tex. Fam. Code Ann. 54.04(i) (Vernon 1996); In Re J.S., 993 S.W.2d 370, 372 (Tex. App.-San Antonio 1999, no pet.). Thus we must review the evidence to determine if the trial court acted without regard to these principles.

Sufficiency of the Evidence

In a single issue, C.M.G. argues the evidence was legally and factually insufficient to support

the trial court's decision to remove her from her home. Under an abuse of discretion standard, legal and factual sufficiency are relevant factors in assessing whether the trial court abused its discretion. Doyle v. Doyle, 955 S.W.2d 478, 481 (Tex. App. -Austin 1997, no pet.). C.M.G. thus contends the trial court abused its discretion in committing her to TYC.

At the disposition hearing, the trial court heard from C.M.G.'s probation officer, Brent Houdmann, C.M.G.'s father, and C.M.G. herself. No dispute exists over whether the court's order contains the statutory language required by Section 54.04 of the Texas Family Code. In compliance with the statute, the court's order recites:

The Court finds it is in the child's best interest to be placed outside the child's home; and finds that reasonable efforts were made to prevent or eliminate the need for child's removal from the home and to make it possible to return home; and further finds that 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.

See Tex. Fam. Code Ann. 54.04 (f) & (i) (Vernon 1996).

Adequacy of Home Supervision

The record raises some concerns about the adequacy of C.M.G.'s home supervision. At the hearing, C.M.G.'s father exhibited a lack of knowledge regarding the group of peers with whom C.M.G. associated. The State tendered as evidence the probation officer's pre-disposition report which discussed instances of truancy that contributed to C.M.G.'s failure in several classes, her past heroin use, and her marijuana use even as recently as the weekend before the disposition hearing. The State also expressed concern about the potential influence of C.M.G.'s mother, who was in prison for drug-related offenses and probation violations. C.M.G. was eager for her mother's scheduled release from prison in a few months. Despite this evidence, Probation Officer Houdmann recommended among other things, that C.M.G. serve a probationary period until her eighteenth birthday and remain in her father's custody, attend substance abuse counseling and therapy, and abide by a curfew of 8:00 p.m.

The trial court is not bound to follow the recommendations of the probation officer. See Tex. Fam. Code Ann. 54.04 (b)(trial court "may consider" probation officer's written reports). We hold that the evidence presented is both legally and factually sufficient to support the court's finding that C.M.G. could not be provided in her home with the quality of care and level of support and supervision needed to comply with the conditions of probation. See In the Matter of K.L.C., 972 S.W.2d at 206.

Efforts to Prevent Removal from Home

C.M.G. contends the record is wholly silent as to any efforts that were made to prevent the need for C.M.G.'s removal from her home. See Tex. Fam. Code Ann. 54.04(i)(2); In the Matter of K.L.C., 972 S.W.2d at 206 (holding that "the trial court's finding that 'reasonable efforts were made' to seek alternatives to TYC was unsupported by the record"). C.M.G. argues that the trial court failed to investigate any means of punishment other than removal from the home. We disagree.

At the hearing, Probation Officer Houdmann indicated that C.M.G. was never taken into custody following the incident, nor was she ever placed on any type of electronic monitor. Rather, she was allowed to remain in her home under the care and supervision of her father. The trial court was entitled to consider this course of action as an attempt to keep C.M.G. in her home. The court could also reasonably conclude, based on the evidence, that the attempt to prevent removal from the home met with limited success. Since the date of the offense, C.M.G. attended psychiatric appointments every two weeks and was prescribed medication for anxiety and depression. However, in the nearly three months from the date of the offense to the date of the hearing, C.M.G. continued to smoke marijuana every other day, including just a few days prior to the hearing. Additionally, C.M.G.'s truancy increased during this time period, and she had not attended school at all for nearly two months. Under the circumstances, the trial court was presented with a situation in which an attempt had already been made to keep the child in the home, but the attempt was unsuccessful. Accordingly, the trial court acted within its discretion when it found that reasonable efforts were made to prevent or eliminate the need for C.M.G.'s removal from the home.

Best Interest of the Child

The pre-disposition report entered into evidence describes C.M.G. as a follower, not a leader, who needs to be kept from negative peers. In this regard her need for additional supervision was noted. C.M.G.'s continued abuse of marijuana and her on-going truancy while under the supervision of her father obviously are not in her best interest. Further, allowing her to remain in her home would neither protect her from the questionable influence of her mother, nor remove her from the negative influence of peers at her school whom she blamed for her truancy. Likewise, imposing an 8:00 p.m. curfew would not shield C.M.G. from the influence of undesirable peers at school. Based on the evidence, the trial court did not abuse its discretion in finding that commitment to TYC is in C.M.G.'s best interest.

Accordingly, C.M.G.'s sole issue is overruled and the judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. Juvenile Referee Irma D. Hernandez presided over the adjudication and disposition hearings. Judge Kelsey approved the referee's recommended Order of Commitment to the Texas Youth Commission.