W.D.A. v. The State of Texas--Appeal from County Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-91-125-CV

W.D.A.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court

Bosque County, Texas

Trial Court # 90-06-054J

O P I N I O N

W.D.A., a juvenile, appeals from a modification of a disposition order. He alleges violations of due process and right to counsel under both federal and state law. He also alleges that the county court's orders failed to include mandatory provisions from the Family Code. We will reform and affirm the judgment.

In July 1990, the juvenile court of Bosque County found that W.D.A. had engaged in delinquent conduct and placed him on probation for one year. He was initially placed at Kids Incorporated, a residential treatment facility. On December 7, he was moved to the Central Texas Therapeutic Foster Home. He was discharged twenty days later and returned to his father's home in Clifton. On January 25, 1991, the State filed a motion to modify the disposition order. The court modified the order and committed the child to the custody of the Texas Youth Commission (TYC).

In points one through five, W.D.A. asserts various violations of his federal and state constitutional rights to due process. He also asserts violations of his right to counsel and to a fair trial under the provisions of the Family Code. His complaints center around a meeting of community and mental health officials which occurred on January 25, 1991, in the county judge's office. Present at this meeting were: the county judge, the chief of police, the county attorney, the superintendent of the school system, the high school principal, juvenile probation officers, and the regional director for the Heart of Texas Mental Health and Mental Retardation Center (MH-MR). Neither W.D.A., his family, nor his attorney were present at this meeting. The State filed its motion to modify the child's disposition the same afternoon.

Participants testified about the meeting at the modification hearing, at which the county judge presided. Each testified that they discussed the problem of what to do with the child. The juvenile probation officer testified that the child's past misconduct was discussed, as were possibilities of where he might be placed. The MH-MR director testified that his personal impression was that the consensus among the participants was to remove the child from the county. The high school principal stated that the school did not have a program that would best serve the child. Clifton's police chief expressed his opinion in the meeting that the child, because of his criminal activity, was potentially dangerous to himself and the community and should be placed in an institution that could manage his problems. He testified that since W.D.A. had been placed on probation the Clifton police department had had forty-five to fifty contacts with the child.

W.D.A. asserts that this "Star Chamber" meeting denied him due process and a fair trial because, at the conclusion of the modification hearing, the judge committed him to the Texas Youth Commission just as the State requested in its petition and as the group had discussed in its meeting.

The county court is the designated juvenile court in Bosque County. Where a county court is designated as a juvenile court, at least one other court shall also be designated as the juvenile court. Tex. Fam. Code Ann. 51.04(c) (Vernon Supp. 1992). Also, when the judge of the designated court is not a licensed attorney, an alternate court must be designated. Id. 51.04(d) (Vernon 1986). The county judge who presided over W.D.A.'s modification hearing is a non-lawyer judge who had taken office less than two months before. He had not presided over the original disposition hearing in June 1990. The district court of Bosque County, the alternate court designated under the Family Code, could have heard the motion to modify. Id. In fact, the county judge suggested to the parties that the case be referred to the district court, but his suggestion was not acted upon by either party.

At the conclusion of the hearing, the judge stated that, although there might have been a "questionable gathering of the forces," his only purpose in holding the meeting was to find an alternative to sending the child to the TYC. The court then announced that W.D.A. had violated the terms of his probation, but recessed the hearing for ten days to give the juvenile probation officers and the child's counsel time to find an alternative placement. No statement of facts from the continued hearing is before us. Because the child was eventually committed to the TYC, we assume that no alternative placement could be found.

W.D.A.'s counsel and the State agree that the child's experience in the system has been less than perfect. The residential facility where he was first placed closed due to violations of state regulations. The second facility was under investigation when the child entered, and it was appealing the revocation of its license at the time of trial. The child's father testified that W.D.A. had been home since January 1991, that it was very difficult to control him, and that it was not in the child's best interest to remain in his home.

We note that the full array of constitutional due-process rights applies only to an adjudication hearing. In the Matter of J.T.H., 779 S.W.2d 954, 957 (Tex. App. Austin, no writ). Due process is satisfied in a disposition hearing when the juvenile is represented by counsel, has full opportunity to cross-examine and present witnesses, and is fully aware of the nature of the proceedings. Id.

The representatives of the community organizations were free to convene and discuss the welfare of a child under their care. Several of the participants, including the juvenile probation officer and MH-MR director, testified that the TYC was not appropriate for W.D.A. yet none could give a viable alternative. Even with the ten-day recess, no alternative placement was found. It appears from the record that every effort was made by the presiding judge to avoid committing the child to the TYC. We do not find that W.D.A. was denied due process or a fair trial. See id. We overrule points one through five.

In points six and seven, W.D.A. asserts that the original order placing him on probation and the order modifying the disposition lacked two mandatory determinations required by the Family Code. Section 54.04(i) of the Family Code states that when a court places a child on probation outside the home, or commits a child to the TYC, it shall include in its order its determination that (1) it is in the child's best interests to be placed outside the home, and (2) reasonable efforts were made to prevent the need for the child's removal. Tex. Fam. Code Ann. 54.04(i) (Vernon Supp. 1992). The Austin Court of Appeals has held this provision to be mandatory, requiring remand for sufficient determinations. Matter of J.T.H., 779 S.W.2d at 960.

The original order placing the child on probation, signed July 17, 1990, by a former judge, did not contain the findings required by section 54.04(i). On that same day, the child and his attorney signed "Defendant's Waiver of Appeal." A child may waive any right granted by constitution or law. Tex. Fam. Code Ann. 51.09(a) (Vernon 1986). W.D.A. made a written, informed, and voluntary waiver of his right to appeal the court's original order. See id. He cannot now complain about that order.

In its order modifying the disposition, the court found that W.D.A. violated a "reasonable and lawful order of the court," as required under section 54.05 of the Code. See id. 54.05(f) (Vernon Supp. 1992). Although the original order failed to include the mandatory determinations, it was not void. To the extent that the original order set forth the terms and conditions of probation, the court could find that W.D.A. violated a "reasonable and lawful order of the court." Further, whereas section 54.04 governs disposition hearings and requires the mandatory determinations, section 54.05 governs modifications and does not require similar determinations. Id. 54.04(i), 54.05. Thus, the court did not err in failing to include the determinations in the order modifying the disposition. We overrule points six and seven.

In his eighth point, W.D.A. asserts that the court erred in committing him to the TYC until the age of eighteen. The court committed W.D.A. to the TYC "for an indeterminate period not to exceed [his] Eighteenth (18th) birthday." The Family Code provides that "the court may commit the child to the Texas Youth Commission without a determinate sentence." Id. 54.04(d)(2). The TYC may not discharge the child before his eighteenth birthday without approval of the juvenile court, but it must discharge him on his twenty-first birthday. Tex. Hum. Res. Code Ann. 61.084(a), (d) (Vernon Supp. 1992). Once a court commits a child to the TYC, the Commission has broad discretion in dealing with the child including when to discharge him. In the Matter of A.N.M., 542 S.W.2d 916, 921 (Tex. Civ. App. Dallas 1976, no writ). We sustain point eight.

In his final point, W.D.A. asserts that the court erred in finding he had violated a reasonable and lawful order of the court while at the second residential treatment center because the order transferring him to that facility was not effective until after the alleged incidents occurred.

The child was initially placed at Kids., Inc., a residential treatment facility, in July 1990. On December 7, he was transferred to Central Texas Therapeutic Foster Home. He was discharged from that facility on December 27 and returned to his father's home in Clifton. On January 8, 1991, the court signed "Amended Conditions of Probation at Placement Facility" that changed the child's residence to Central Texas Therapeutic. The State filed its motion to modify the disposition on January 25, alleging the child had violated the conditions of his probation while at Kids, Inc. In the order modifying disposition, the court found that W.D.A. had violated the conditions of his probation by skipping school and by running away from both facilities. It further found that, while at Kids, Inc., W.D.A. had knowingly and intentionally threatened a teacher with bodily harm.

A juvenile court may commit a child to the TYC after a modification hearing if it finds beyond a reasonable doubt that the child violated a reasonable and lawful order of the court. Tex. Fam. Code Ann. 54.05(f). The court found beyond a reasonable doubt that W.D.A. violated the terms of his probation at Kids, Inc. and he does not complain of the court's finding. Any findings of violations at Central Texas Therapeutic are surplusage and did not cause rendition of an improper judgment. See Tex. R. App. P. 81(b)(1). We overrule point nine.

Having sustained point eight, we reform the judgment to delete that portion stating "not to exceed [his] Eighteenth (18th) birthday" and affirm the judgment as reformed.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reformed and affirmed

Opinion delivered and filed July 8, 1992

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