In the Matter of G. M., a Juvenile--Appeal from 65th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE MATTER OF G.M., a juvenile,

Appellant.

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No. 08-02-00459-CV

Appeal from the

65th District Court

of El Paso County, Texas

(TC# 99,00843)

MEMORANDUM OPINION

G.M., a juvenile, appeals the trial court=s judgment committing him to the Texas Youth Commission. He argues that the evidence is neither legally nor factually sufficient to support the trial court=s disposition, urging that a lesser appropriate sanction was available, and the only reason G.M. was not placed in that program was his undocumented immigration status. Finding there was sufficient evidence to support the trial court=s disposition ruling, we affirm.

Facts

In August 2002, while on probation for delinquent conduct consisting of driving while intoxicated, G.M. committed criminal trespass. After a disposition hearing held on October 3, 2002, G.M. was committed to the Texas Youth Commission. In its judgment of commitment, the trial court found that the disposition was justified because reasonable efforts had been made to prevent the child from being removed from his home, in that before the disposition currently at issue, the child had been placed on probation, he had been referred to Aliviane, intensive supervised probation under the Project Spotlight program, an electronic monitoring program called Project Libertad, the Life Skills program, that in addition to these programs, he had been referred to psychological counseling, that he was not attending school and he needed to enroll and continue his education, and he did not have legal status in the U.S.

Background

G.M., at the time of the disposition hearing, was fifteen years old; he is the youngest of three children. G.M., his siblings, and his mother are undocumented aliens. His father is a resident alien. It is possible that he could gain lawful status, but his parents have not pursued it. G.M. and his nineteen-year-old girlfriend have two children. They all live in his parents= home in El Paso, Texas.

G.M. attended school approximately two weeks during 2001. At the time of his disposition hearing, he was enrolled in high school, but had not attended any classes there. While in the juvenile detention facility, he was required to attend the Delta Academy, and had done quite well. His probation officer believed that he needed to be forced to attend school. While in Project Libertad, he missed his counseling sessions on several occasions, which caused his termination from that program.

In April 2002, a petition to adjudicate G.M. delinquent based on domestic violence, driving while intoxicated, possession of marijuana, and criminal trespass was filed. He pleaded true to the driving while intoxicated count, and the other allegations were dismissed. G.M. was placed on probation in the Project Spotlight program. While in this program, he twice tested positive for marijuana. G.M. failed to appear for counseling appointments. He was terminated from that program and then referred to the Millennium program (the nature of which is not discussed in this record).

The juvenile probation department recommended G.M. be committed to the Texas Youth Commission after considering alternatives. Originally, he was considered for placement in a secure facility, Challenge Boot Camp. His probation officer testified: A[t]here was no finding, physically or mentally, to keep him from entering the Challenge Boot Camp; however, given that he is a Mexican national and he is undocumented, he was declined for the program.@ The probation officer testified that although the boot camp staff felt they could not take G.M. because of his immigration status, nevertheless the judge could order him admitted to Challenge Boot Camp, and the officer had known instances where a Mexican national had attended the boot camp. The probation officer testified that G.M. needed to attend school, which he was not doing in the community, that he needed behavior modification, substance abuse treatment, vocational training, and citizenship classes. G.M.=s vocational and citizenship needs could not be met at boot camp, but such programs are available at TYC. TYC would provide counseling services for G.M., his parents, his girlfriend, and his children. The probation officer testified that he believed sending G.M. to TYC was in his best interest, and the best interest of the community.

G.M. was also considered for return to his home environment but it was decided that G.M.=s needs could not be met there because of a lack of supervision in the home, and G.M. is not easily supervised. In the probation officer=s opinion, G.M.=s parents minimize his problems and blame others for his delinquent conduct and truancy. He also has a history of running away. When at his parents= home, he stays home, or meets negative peers at places he should not be. G.M., on the other hand, states that he does not go to school because he needs to take care of his children. G.M. and his girlfriend are supported by G.M.=s parents. His probation officer testified that G.M. had probably exhausted community resources, and he had not seen improvement in his behavior during the period of intensive supervision.

G.M. began his relationship with the Texas justice system at the age of ten in 1998. That year he was apprehended for disorderly conduct and assault. In 1999, G.M. pleaded true to delinquent conduct in the form of assault, and agreed to pay restitution. In 2000, G.M. entered a state program, Project Libertad, which relied upon electronic monitoring. While in that program, he violated his probation by committing criminal trespass and other offenses. During this period, G.M. and his parents participated in a state-sponsored parenting class. In February 2000, G.M. tested positive for marijuana, whereupon he entered the Aliviane Drug Treatment program.

G.M=s mother disagreed with the recommendation that he be sent to TYC. She agreed to participate in the Challenge Boot Camp program if he were sent there. G.M.=s father, on the other hand, stated, Aif it is for his own good, then, it=s fine.@ G.M. himself did not agree with the recommendation. He stated that if the judge ordered him to Challenge Boot Camp, he would participate and follow the rules.

The court found that G.M. was eligible for placement at TYC by virtue of an adjudication for misdemeanor assault in June 1999; adjudication for driving while intoxicated in May 2002; and adjudication for criminal trespass in September 2002. The court found that G.M.=s need for rehabilitation, and the protection of himself and the public all required that the probation department=s recommendation of commitment to TYC be followed. It also found that it was in G.M.=s best interest to be placed outside his home because his parents do not adequately supervise, control or discipline him, nor does he lend himself to discipline, that reasonable efforts had been made to keep him in his home and to make it possible for him to return home, and that he was not attending school and needed to enroll in a continuous education program. The court also found that there are no community-based intermediate sanctions available to adequately address G.M.=s needs, that the gravity of the offense and his prior record required his confinement in a secure facility, and that G.M.=s needs and status justified a deviation from the sanction guideline levels.

Sufficiency of the evidence to support disposition

In two points of error, G.M. challenges the legal and factual sufficiency of the evidence used to justify his commitment to the Texas Youth Commission. In particular he asserts that the community-based intermediate sanction of Challenge Boot Camp was appropriate and was not available to him solely because he was not a legal resident of the U.S. Finding this was only one of several reasons for deviating from the sanction guidelines, we affirm.

Standard of review

When challenging the factual and legal sufficiency of evidence to support an offense, the appellate court applies a reasonable doubt standard for the finding of delinquency in the light of a criminal proceeding. In re L.R., 67 S.W.3d 332, 338 (Tex. App.--El Paso 2001, no pet.). We do not disturb the juvenile court=s disposition order in the absence of abuse of discretion. In re M.A.C., 999 S.W.2d 442, 446 (Tex. App.--El Paso 1999, no pet.).

Juvenile courts are vested with broad discretion in determination of suitable disposition of children involved in delinquent conduct. In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.--Fort Worth 2002, no pet.). Abuse of discretion does not occur where there is some evidence of substantive and procedural proof to support the trial court ruling. Id. This is especially true in hearings which involve disposition, and absent an abuse of discretion, the appellate court will not disturb the juvenile court=s ruling. See In re E.R.L, No. 08-02-00259-CV, 2003 WL 21290917, at *4 (Tex. App.--El Paso June 5, 2003, no pet. h.). We review dispositions using a two-pronged analysis: (1) did the trial court have sufficient information in order to exercise its discretion; and (2) did the trial court commit error in its application. Id. We use traditional sufficiency of the evidence standards to answer the first question, then continue to determine whether the trial court=s decision was reasonable. Id.; In re L.R., 67 S.W.3d at 338; In re M.A.C., 999 S.W.2d at 446. The question is whether the trial court acted without reference to guiding rules or principles, not whether in the opinion of the appellate court the facts present an appropriate case for the trial court=s action. In re L.R., 67 S.W.3d at 338; In re M.A.C., 999 S.W.2d at 446. Our review is in conformance to the Texas Family Code section 54.04(i) and the explicit considerations it commands.[1] Tex. Fam. Code Ann. ' 54.04(i) (Vernon 2002); In re L.R., 67 S.W.3d at 338; In re T.K.E., 5 S.W.3d 782, 784 (Tex. App.--San Antonio 1999, no pet.); In re M.A.C., 999 S.W.2d at 446.

Factual sufficiency

Factual sufficiency requires the appellate court=s examination of all the evidence to determine Awhether the finding . . . is so against the great weight and preponderance of the evidence as to be manifestly unjust.@ In re L.R., 67 S.W.3d at 339.

In asserting factual insufficiency, G.M. argues that, but for his undocumented alien status, he would have been recommended for Challenge Boot Camp. We find no evidence that supports this assertion. It is true that the boot camp program offers behavior modification, substance abuse and educational programs, as does the TYC, and the boot camp is in the community. However, Challenge Boot Camp does not offer citizenship classes, while TYC does offer such classes, and G.M. would benefit from these. The Texas Youth Commission offers vocational training which would allow G.M. to gain skills necessary to provide for his two children; boot camp does not offer vocational training. Most importantly, the TYC offers after-care services when G.M. returned to his home environment, which are not available in the boot camp program. The probation department stated this after-care was Acritical@ to his rehabilitation. Further, G.M. has had the opportunity to participate in many community-based programs, and none have been successful in changing his delinquent behavior.

G.M.=s case was staffed by the probation department through its top officials: the senior probation officer, senior officer, director of probation services, and deputy chief probation officer. All were in agreement with this course of action. Even G.M.=s father acquiesced in the probation department=s recommendation. We find that the trial court had ample evidence upon which to make the disposition, that the weight of the evidence supports a finding that the Texas Youth Commission would best suit G.M, and the great weight and preponderance of the evidence does not support G.M.=s assertion that, but for his alien status, his disposition would not have been TYC. Finally, we find that the trial court did not err in applying the facts before it in a reasonable manner. G.M.=s first point of error is overruled.

Legal sufficiency

We find legal sufficiency if there is more than a scintilla of evidence to support the finding and disregard all evidence and inferences to the contrary. In re L.R., 67 S.W.3d at 339. For the reasons discussed in our analysis of G.M.=s first point of error, we find there was legally sufficient evidence to support the trial court=s disposition. We overrule Point of Error Two.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

August 14, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

[1]Tex. Fam. Code Ann. ' 54.04(i) (Vernon 2002):

(i) If the court places the child on probation outside the child=s home or commits the child to the Texas Youth Commission, the court:

(1) shall include in its order its determination that:

(A) it is in the child=s best interests to be placed outside the child=s home;

(B) reasonable efforts were made to prevent or eliminate the need for the child=s removal from the home and to make it possible for the child to return to the child=s home; and

(C) 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; and

(2) may approve an administrative body to conduct permanency hearings pursuant to 42 U.S.C. Section 675 if required during the placement or commitment of the child.