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

MEMORANDUM OPINION
No. 04-07-00068-CV
IN THE MATTER OF C.E.D.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-JUV-01472
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: October 17, 2007

 

AFFIRMED

This is an appeal from an order of adjudication and disposition placing C.E.D., a juvenile, outside her home. In a single point of error, C.E.D. argues that the trial court abused its discretion in placing her outside of her home because the record "indicates that a continuation of probation at home would have been a more appropriate disposition." We affirm.

Background

Appellant, C.E.D., a juvenile, pled true to charges that she assaulted a public servant, and was placed on probation in the custody of her mother for a period of one year beginning June 2, 2006. On September 6, 2006, the State filed an Original Motion to Modify Disposition, alleging that C.E.D. violated the terms of her probation by intentionally and knowingly possessing a drug more popularly known as Xanax. On September 14, 2006, C.E.D. stipulated to the State's evidence and was continued on probation in the custody of her mother for a period of one year beginning on September 14, 2006.

On November 27, 2006, the State filed a Second Motion to Modify Disposition; however, before the matter was heard, the State filed a First Amended Second Motion to Modify Disposition. This motion alleged that C.E.D. violated the terms of her probation by 1) violating her school's "'previously communicated written standards of conduct' as the result of an expulsion"; 2) left home without permission; and 3) failed to attend school every day and follow all school rules. C.E.D. pled true to the three violations. The trial court found that C.E.D. violated terms of her probation and also found that there was a need for disposition.

Following the adjudication phase of the hearing, the trial court held a disposition hearing.

The State recommended that C.E.D. be continued on probation for two additional years; however, instead of recommending placement once again with her mother, the State recommended that C.E.D. be placed in the custody of the Chief Juvenile Probation Officer for the purpose of long-term placement in a secure facility. In support of its position, the State offered into evidence the probation officer's supplemental predisposition report which listed the following violations committed while C.E.D. was in the care of her parent:

11/02/06 C.E.D. was expelled from school

11/06/06 C.E.D. failed to participate in the intake at the Bexar County Juvenile Justice Academy ("BCJJA").

11/07/06 C.E.D.'s appointment at BCJJA was rescheduled; however, C.E.D. once again refused to go.

11/08/06 C.E.D. left home without permission.

11/14/06 C.E.D. left home without permission.

Additionally, this supplemental report included the following prior interventions while C.E.D. was in the care of her parent:

06/02/06 C.E.D. was placed on probation for twelve months after stipulating to Assault Bodily Injury-Public Servant.

08/02/06 C.E.D. was placed on probation for ten months after stipulating to Terroristic Threat.

09/14/06 C.E.D. was continued on probation for one year after stipulating to Violation of Probation #1 (Possession of Dangerous Drugs-Xanex and Darvocet).

 

The State also apprised the court that C.E.D. had a new case of assault on a public servant pending that had not been taken into consideration in this case.

C.E.D. requested that she be permitted to remain at home and told the court that she was now willing to attend school, despite having refused to attend school since November 22, 2006. Additionally, C.E.D.'s mother told the court that she would ensure her daughter went to school and took her medication every day; however, the mother had previously contacted C.E.D.'s probation officer to report that C.E.D. had left home without obtaining permission.

The trial court subsequently extended C.E.D.'s probation for two years, placing her in the custody of the Chief Juvenile Probation Officer of Bexar County for the purposes of long-term placement in a secure facility. The trial court provided the following reasons for doing so on the record: 1) this was C.E.D.'s fourth appearance before the court throughout 2006; 2) on June 2, 2006, C.E.D. received probation for assault on a public servant and at that hearing, several cases were taken into consideration, including a charge of terroristic threat and two Conduct Indicating a Need for Supervision ("C.I.N.S.") referrals; 3) C.E.D. returned on August 2, 2006 and received probation for terroristic threats, at which time the court took into consideration two charges for contempt of court and one charge for possession of a dangerous drug; 4) C.E.D. made another appearance on September 14, 2006, at which time the judge gave her another opportunity and had a "long conversation" with C.E.D. telling her to stay out of trouble; 5) C.E.D. was not able to successfully complete probation while in the care of her parent; 6) placement outside the home was in the child's best interest; 7) reasonable efforts were made to prevent or eliminate the need for the child's removal from the child's home and to make it possible for the child to return to the child's home; and 8) the child in the child's home cannot be provided the quality of care and level of support and supervision she needs to meet the conditions of probation while at home. It is from the disposition on the motion to modify that C.E.D. now appeals.

Standard of review

Juvenile courts have broad powers and discretion in determining a suitable disposition for a juvenile found to have engaged in conduct indicating a need for supervision, particularly in a proceeding to modify a disposition. See In re E.D., 127 S.W.3d 860, 863 (Tex. App.--Austin 2004, no pet.). Absent a clear abuse of discretion, the juvenile court's findings regarding the modification of a disposition should not be disturbed. See In re J.P., 136 S.W.3d 629, 632 (Tex. 2004); In re C.C., 930 S.W.2d 929, 930 (Tex. App.--Austin 1996, no pet.). The juvenile court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to guiding rules and principles. In re T.K.E., 5 S.W.3d 782, 784 (Tex. App.--San Antonio 1999, no pet.).

The trial court may modify its original disposition if, after a hearing, the court finds by a preponderance of the evidence that the child violated a reasonable and lawful order of the court. Tex. Fam. Code Ann. 54.05(f) (Vernon Supp. 2006); In re E.D., 127 S.W.3d at 863-64. However, the trial court must state specifically its reasons for modifying the disposition, and the court's findings should not be disturbed so long as they are supported by the record. Tex. Fam. Code Ann. 54.05(i) (Vernon Supp. 2006); In re E.D., 127 S.W.3d at 864. The violation of one condition of probation is sufficient to support a trial court's order modifying a juvenile's disposition. In re S.G.V., No. 04-05-00605-CV, 2006 WL 923576, at *3 (Tex. App.--San Antonio 2006, no pet.) (not designated for publication).

Discussion

In one issue on appeal, C.E.D. argues that the trial court abused its discretion in placing her outside of her home because the record "indicates that a continuation of probation at home would have been a more appropriate disposition." Appellate counsel admits that C.E.D. has a history of psychiatric and psychological treatments, as well as a history of not taking her medications on a regular basis; however, counsel maintains that C.E.D. had "turned a corner prior to the modification hearing" and promised the court that she would take her medications and go to school every day. C.E.D. also wrote a letter advising the court that she wanted another chance and promised to go back to school and finish out her probation. Additionally, C.E.D.'s mother assured the court that she would work with C.E.D. to insure that C.E.D. took her medications, went to school and continued her psychiatric treatment. Counsel argues that "[g]iven these assurances, and given the non-criminal nature of C.E.D.'s violations, a continuation of probation in her home would have been more appropriate than placement in a secured facility."

Nevertheless, the record reflects that C.E.D. had been before the court four times in one year, with no sign that her situation was improving. And although C.E.D.'s appellate counsel argues that C.E.D.'s violations were "non-criminal," the record reflects that C.E.D. reportedly stole prescription drugs from her aunt and took them to school. C.E.D. also admitted to using a number of drugs, including alcohol, heroin, marijuana, Xanex and Darvocet. Further, C.E.D. lived with both her mother and grandmother who had each contacted C.E.D.'s probation officer advising him that C.E.D. had left the house without permission on two different occasions while on probation. Additionally, the record reflects that C.E.D. adamantly refused to enroll in school after being expelled from boot camp and allegedly assaulted a public servant just six days prior to the hearing.

Here, C.E.D. was given several opportunities to successfully complete her probation while in her mother's custody; however, there was no indication that C.E.D. was receiving the rehabilitation and structure from the home that she required. As the trial court's findings are supported by the record, it did not abuse its discretion. Tex. Fam. Code Ann. 54.05(i) (Vernon Supp. 2006); In re E.D., 127 S.W.3d at 864.

Accordingly, we affirm the trial court's order.

Karen Angelini, Justice