In the Matter of K.T.--Appeal from 386th Judicial District Court of Bexar County

CONCURRING OPINION
No. 04-02-00043-CV
IN THE MATTER OF K.T.
From the 386th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-JUV-02449
Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Concurring opinion by: Catherine Stone, Justice, joined by Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 12, 2003

I concur with the judgment of the court; I write separately, however, because I believe the majority needlessly overrules prior decisions of this court and alters the standard of review.

In justifying its alteration of the standard of review, the majority relies on the supreme court's recent decision in of In re R.J.H., 79 S.W.3d 1 (Tex. 2002). In that case, the supreme court noted that "no rule, statute, or court decision" prescribed a standard for appellate review of a ruling on a motion to suppress in juvenile cases. For this reason, the Texas Supreme Court adopted the abuse of discretion standard applicable in reviewing a trial court's ruling on a motion to suppress in criminal cases. The court announced that it would "defer to the trial court's findings of historical fact but determine de novo whether those facts show that a juvenile's statements were made voluntarily for purposes of constitutional due process." This standard was adopted by the Texas Court of Criminal Appeals in Guzman for issues involving mixed questions of law and fact. In ruling on a motion to suppress, a trial court is required to apply an established legal standard to the facts presented.

There are numerous reasons an abuse of discretion standard should not apply in this context. First, in determining an appropriate disposition in a juvenile case, the trial court is not applying a set legal standard to the facts. Although the trial court is guided by the requirements contained in section 54.04(i) of the Family Code, the ultimate decision of whether disposition should include placement outside the child's home or commitment to TYC is within the trial court's discretion. On review, "[t]he question is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but whether the court acted without reference to any guiding rules and principles." In re L.R., 67 S.W.3d 332, 338-39 (Tex. App.-El Paso 2001, no pet.). "The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Id. Although a reviewing court may consider the sufficiency of the evidence to support the required findings under section 54.04 as a factor in considering whether the trial court abused its discretion, we are not permitted to determine de novo whether those facts supported the disposition ruling because we may not substitute our opinion for that of the trial court. A trial court that routinely handles juvenile dispositions is in an appreciably better position than an appellate court to decide an appropriate disposition in a given case; therefore, an appellate court should not independently determine whether the disposition was appropriate. Finally, unlike the situation in In re R.J.H., there are numerous court decisions prescribing a standard for appellate review of a disposition ruling.

The findings required by section 54.04(i) do not remove the trial court's discretion in ordering a particular disposition in any given case. A trial court may determine that each of the requirements set forth in section 54.04(i) are present and for some reason still exercise its discretion not to order placement outside the home. The trial court cannot, however, order placement outside the home without the required findings. A trial court acts without reference to guiding rules and principles if the trial court orders placement outside the home in the absence of evidence to support the findings required by section 54.04(i). For this reason, a sufficiency review is the appropriate standard.

In In re J.S., J.S. challenged the sufficiency of the evidence to support the trial court's finding that he could not be provided the quality of care and level of support and supervision within his home. 993 S.W.2d 370, 374 (Tex. App.--San Antonio 1999, no pet.). After reviewing the evidence, we determined that the only evidence supporting a finding that J.S. was not being provided adequate support in his home "stemmed from a time period in which [J.S.] was living with his mother, the same time at which the offense occurred." Id. at 374. We then noted that J.S. had been living with his father for over a year after the offense occurred and prior to the hearings on adjudication and disposition. Id. During that time, J.S. had attended individual, group and family counseling, his father actively participated in counseling, the counselors noted J.S.'s progress in acknowledging and accepting what he had done wrong and expressing remorse for his actions. Id. Accordingly, we held that there was no evidence that J.S.'s father could not provide the quality of care and level of support and supervision J.S. needed. Id. In the absence of evidence to support this finding, the trial court did not have the discretion to order placement outside the home.

In my view, although the majority advocates an abuse of discretion standard, the majority applies a sufficiency analysis in considering whether the evidence in this case is sufficient to support the trial court's finding that K.T. cannot be provided the quality of care and level of support and supervision in his home. After reviewing the evidence relevant to the trial court's finding, the majority concludes, "Given this evidence, we hold the trial court was authorized to find that K.T. 'in [his] home, cannot be provided the quality of care and level of support and supervision that [he] needs to meet the conditions of probation.'" In holding that the trial court was authorized to make the finding because evidence supported that finding, the majority necessarily reviewed the sufficiency of the evidence to support the finding, thereby using the same standard of review and applying the same analysis used in J.S. and our prior decisions.

For these reasons, I would continue to follow this court's prior rulings in In re K.R. and In re S.J.

Catherine Stone,

Justice

Publish