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

MEMORANDUM OPINION
No. 04-03-00132-CV
IN THE MATTER OF D.A.G.
From the 289th Judicial District Court of Bexar County, Texas
Trial Court No. 2002-JUV-00228
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 8, 2003

AFFIRMED

Appellant D.A.G. was charged by petition with the delinquent conduct of possession of less than two ounces of marijuana. Pursuant to a plea agreement, D.A.G. was placed on six months' probation. Subsequent to an alleged probation violation, the State moved to modify D.A.G.'s disposition. Following a hearing, the trial court found that D.A.G. had violated the conditions of his probation. The trial court then modified D.A.G.'s disposition, continued his probation, and removed him from his home, placing him in the custody of the Bexar County Juvenile Department. D.A.G. now appeals, citing two issues.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the judgment of the trial court in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his second issue, D.A.G. argues the evidence is insufficient to support the juvenile court's decision to remove him from his home. A juvenile judge has broad discretion in determining a suitable disposition for a juvenile that has been adjudicated delinquent. In the Matter of K.J.N., 103 S.W.3d 465, 465-66 (Tex. App.--San Antonio 2003, no pet.); In re H.G., 993 S.W.2d 211, 213 (Tex. App.--San Antonio 1999, no pet.). A trial court may modify its prior disposition if it finds by a preponderance of the evidence "that a child violated a reasonable and lawful order of the court." Tex. Fam. Code Ann. 54.05(f) (Vernon 2002). Absent an abuse of discretion, a reviewing court will not disturb the juvenile court's determination. In re H.G., 993 S.W.2d at 213. A trial court abuses its discretion when it acts arbitrarily, without reference to guiding rules or principles. Id.

On appeal, D.A.G. argues the trial court abused its discretion in placing him outside his home because the evidence failed to show: (1) it was in his best interest; (2) reasonable efforts were made to prevent the need for his removal; and (3) he could not, in his home, be provided with the quality of care and level of support and supervision needed to meet the conditions of his probation. See Tex. Fam. Code Ann. 54.04(i) (Vernon 2002). While evidence of these factors is needed as a prerequisite for placing the child outside of his home when determining an original disposition, such is not the case when the court modifies a disposition. Instead, modification proceedings are governed by 54.05 of the Family Code. See Tex. Fam. Code Ann. 54.05 (Vernon 2002). The controlling issue, then, is whether the evidence is sufficient to support the finding that the juvenile violated a condition of probation by a preponderance of the evidence. See Id.

In the case at hand, the record reflects that, as a condition of his probation, D.A.G. was (1) to have refrained from the usage of illegal drugs, drug paraphernalia or alcoholic beverages and (2) to have participated in and completed a substance abuse counseling program. At the modification hearing, D.A.G. admitted to the fact that he violated these conditions by entering a plea of "true" to each of the alleged violations. A plea of "true" to a violation of a probation order and a stipulation to the evidence are analogous to a judicial confession which justifies the court's finding that the violation was committed by a preponderance of the evidence. See In re M.A.L., 995 S.W.2d 322, 324 (Tex. App.--Waco 1999, no pet.). The trial court, therefore, was within its discretion in modifying D.A.G.'s disposition. Tex. Fam. Code Ann. 54.05(f)(Vernon 2002). (1) We overrule D.A.G.'s second issue.

2. In his first issue, D.A.G. claims the trial court erred in failing to specify the reasons for its decision. When a court modifies a disposition order, it must find that the child violated a reasonable and lawful order of the court. Tex. Fam. Code Ann. 54.05(f) (Vernon 2002); In re H.G., 993 S.W.3d at 214. Under Texas Family Code 54.05(i), a trial court modifying a disposition must specifically state the reasons for modification in the order. Tex. Fam. Code Ann. 54.05(i). In this case, the order modifying D.A.G's disposition specifically states that he engaged in delinquent conduct by violating his probation and that it is in his best interest to place him in the custody of the Bexar County Chief Juvenile Probation Officer for 18 months. The order, therefore, satisfies the requirements of 54.05(i). D.A.G.'s first issue is overruled.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

1. The trial court was within its discretion, even under the standard set forth in 54.04 because the order clearly states (1) that the removal of D.A.G. was within the child's best interest, (2) that reasonable efforts had been taken to prevent the need for his removal, and (3) that the child would not receive the quality of care and level of support and supervision needed to meet the conditions of probation. Tex. Fam. Code Ann. 54.04(I) (Vernon 2002).