
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-03-00702-CV


In the Matter of K. K. D.






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. J-23,402, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


	K.K.D., a juvenile, was adjudicated delinquent for raping the nine-year-old daughter
of his father's girlfriend.  He appeals the trial court's assessment of a forty-year determinate sentence
in the Texas Youth Commission (TYC), claiming that the evidence is legally and factually
insufficient to support the court's finding that "reasonable efforts" had been made to prevent the
need to remove him from his home.  Because we find the evidence legally and factually sufficient,
and because the trial court did not abuse its discretion, we affirm the order of disposition.

BACKGROUND

	Fourteen-year-old K.K.D. was accused in a multi-paragraph petition of engaging in
delinquent conduct by committing two counts of aggravated sexual assault and two counts of
indecency with a child by contact.  See Tex. Pen. Code Ann. §§ 22.021, 21.11(a)(1) (West 2003 &
Supp. 2004).  He entered a plea of true to paragraph III of the petition, which alleged the offense of
aggravated sexual assault against the nine-year-old daughter of his father's girlfriend at their shared
home on May 8, 2003.  During his adjudication hearing on June 26, 2003, K.K.D. admitted to raping
the girl.  The trial court found that K.K.D. had engaged in delinquent conduct.
	On July 23, the trial court held a disposition hearing.  The nurse who examined the
nine-year-old victim shortly after the alleged offense testified that, as a result of the rape, the girl
suffered a three centimeter tear to the tissue of her labia and perineum that required suturing and was
very painful.  The girl also had bruising and abrasions around her vagina and bruising on her head
around her ears.  Detectives found blood from the girl's injuries throughout the home and on her
clothing.  The trial court took judicial notice of the girl's medical records and admitted photographs
of her injuries.
	Sarah Cortez, a licensed professional counselor and registered sex-offender treatment
provider, testified that she performed an assessment on K.K.D. to determine his supervision needs.
Cortez testified that although K.K.D. admitted committing the offense, he did not take full
responsibility for it but instead blamed the victim, saying she wanted him to do it.  Cortez noted
there was a complete inconsistency between K.K.D.'s version of the event and the victim's.
Although the evidence showed the offense to have been violent and to have caused the victim severe
physical injury, K.K.D. insisted that he did not realize she was in pain.  Cortez described K.K.D. as
being very suspicious of her and theorized that this suspicion would carry over to the treatment
setting, and thus he would not do well in treatment.  Cortez described K.K.D. as "concealing" the
details of the offense, rather than merely "minimizing" the event.  She noted that K.K.D.'s history
shows a potential for inflicting violence against women.
	Cortez concluded that K.K.D. was at high risk for re-offending in foster care or a
minimum security setting such as a residential treatment center.  She recommended that he be placed
at the TYC "for as long as the law would allow" and receive treatment there.  She based this
recommendation on the age of the victim, the level of violence, the physical damage inflicted on the
child, and the results of her assessment of K.K.D., including his concealment of evidence and failure
to take responsibility for his actions.  She described K.K.D. as a "power rapist."  She stated that it
would take at least a year of treatment for K.K.D. to "break through" the very first step of recovery,
which is to overcome denial and accept that he intended to commit the offense.  Cortez stated that
K.K.D. needs anger-management treatment and a sex-offender treatment program with twenty-four-hour supervision. 
	K.K.D.'s probation officer, Emilio Perez, testified that at the time of the disposition
hearing, both of K.K.D.'s parents were incarcerated.  At the time of the offense, K.K.D. had been
living with his father, the father's girlfriend, and the victim in Leander for about five months.  Before
that, and for most of his life, he had been living with his grandmother in Del Valle.  At the time of
the hearing, his grandmother was on a three-year probation for manufacturing and delivering cocaine,
and she had been convicted of gambling in 1979, serving a two-year probation for that offense. 
Perez testified that if K.K.D. were given outpatient sex-offender treatment, he would have to live
with a relative and that he would not recommend that K.K.D. be placed with either parent or the
grandmother.  The probation officer testified that an inpatient residential treatment center would also
not be appropriate because the Travis County Juvenile Probation Department (the Department) did
not know where K.K.D. would go for aftercare and which family members, if any, would be
participating in the family portion of the treatment plan.
	Records from child protective services (CPS) showed a long history of involvement
of that agency with K.K.D.'s family and much documented abuse.  For instance, K.K.D.'s
grandmother had been referred to CPS on several occasions for neglectful care and supervision of
K.K.D.'s siblings and using crack cocaine "on a daily basis."  According to CPS records, the
grandmother sent K.K.D. to live with his father about five months before the offense because "she
could no longer handle his behaviors."  K.K.D.'s mother and father had been referred to CPS for
abuse of their children, as well as for drug use and neglectful supervision.  Perez's court report
indicated that the following treatment options for K.K.D. were considered by the Department:  (1)
outpatient sex-offender treatment, if accepted; (2) placement at a residential treatment center
(although K.K.D. was deemed an appropriate candidate for such placement, funding was not
available, and placement had not yet been approved); and (3) sex-offender treatment at the TYC.
	K.K.D.'s psychologist, John King, testified that he believed K.K.D. should be sent
to a "treatment program not unlike Pegasus's treatment program for sexual offenders."  He described
the Pegasus program as highly structured, with a well-experienced staff that is able to move a
youngster though the program and back into the community in about eight to twelve months.  Cortez
had earlier described residential treatment facilities such as Pegasus as providing twenty-four-hour
supervision.
	After hearing evidence and reviewing the documentary records, the trial court
committed K.K.D. to the TYC for a forty-year determinate sentence.  K.K.D. asserts that the
evidence was legally and factually insufficient to support the disposition because there was no
evidence of "reasonable efforts" taken to prevent the need to remove him from his home.  See Tex.
Fam. Code Ann. § 54.04(i)(1) (West Supp. 2004).
DISCUSSION

	To place a juvenile on probation outside of the juvenile's home or to commit him to
the TYC, the court must determine that (1) such placement is in the child's best interests, (2)
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 home, and (3) the child, 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.  See Tex. Fam. Code Ann. § 54.04(i)(1).  Although the juvenile court's order contains
each of these findings, K.K.D. challenges the legal and factual sufficiency of the evidence to support
the second required finding--that "reasonable efforts" had been made to prevent the need to remove
him from his home.  See id.
	In reviewing factual sufficiency, we consider and weigh all of the evidence, and if the
finding is so against the great weight and preponderance of the evidence as to be manifestly unjust,
we set aside the disposition order and remand the case for a new disposition hearing.  In re C.C., 13
S.W.3d 854, 859 (Tex. App.--Austin 2000, no pet.); In re K.L.C., 972 S.W.2d 203, 206 (Tex.
App.--Beaumont 1998, no pet.).  In deciding whether the evidence is legally sufficient, we view the
evidence in the light most favorable to the finding and determine whether any rational finder of fact
could have found the elements of the requirement proven beyond a reasonable doubt.  C.C., 13
S.W.3d at 858; In re M.S., 940 S.W.2d 789, 791-92 (Tex. App.--Austin 1997, no pet.).  K.K.D.
argues that there is no evidence to support the court's finding that reasonable efforts had been made
to prevent the removal from his home, and thus the evidence is both legally and factually
insufficient.
	K.K.D.'s points of error each require us to focus on his home, which, unfortunately,
did not present an acceptable placement for him.  His parents were both incarcerated at the time of
the disposition hearing, evidence demonstrated a family history of abuse, and his grandmother was
on probation for a drug offense and could no longer "handle him," having already sent him away to
live with his father.  Moreover, K.K.D.'s "home" was unacceptable based on the testimony of both
the State's and K.K.D.'s witnesses, who noted that K.K.D. was in need of a twenty-four-hour
residential program, at least as restrictive as Pegasus, and which would necessarily require that
K.K.D. be removed from his home.  The home environment might be appropriate when a juvenile
has been convicted of a non-violent offense and a parent or guardian is present and able to supervise
the child, but it is not appropriate when the juvenile has committed a violent offense against a
household member, neither parent is physically present due to being incarcerated, and the only other
"home" the child has ever known has already relinquished control.  The evidence also sufficiently
supports the finding that K.K.D.'s home environment--be it with his absent parents or his
grandmother--cannot provide him with the level of support and supervision that he needs to meet
the conditions of probation or comply with a treatment program.  According to Perez's report, the
grandmother lacked control over K.K.D.  
	Importantly, we note that the statute requires the Department to make reasonable
efforts to prevent the need to remove the child from the home.  See Tex. Fam. Code Ann. 
§ 54.04(i)(1).  Under these circumstances, there were few, if any, efforts that would have been
reasonable.  Perez's report indicated that the Department had considered the available options for
K.K.D.  The Department and the court concluded that commitment to TYC was the most reasonable
outcome on these facts. 
	K.K.D. attempts to analogize this case to In re K.L.C., in which the Beaumont Court
of Appeals reversed a disposition order because there was no evidence introduced of any effort to
find an alternative to sending the youth to the TYC.  972 S.W.2d at 206-07; see also In re A.S., 954
S.W.2d 855, 862-63 (Tex. App.--El Paso 1997, no writ) (error to commit juvenile to TYC when
record contained no evidence that reasonable efforts had been made and when great weight and
preponderance of evidence showed that juvenile's home could provide him with support and
supervision necessary to meet probation conditions).  However, K.L.C. is distinguishable because
in response to the question whether the Department had tried to work with the juvenile in an attempt
to rehabilitate her, the probation officer responded, "No."  Here, there was no specific question posed
to any witness about particular efforts the Department made to prevent the need to remove K.K.D.
from his home; rather, the evidence supported the trial court's finding because, in light of the
testimony of Cortez, Perez, and even King, it was not reasonable to make efforts to keep K.K.D. in
his "home," especially when there appeared to be no home, in that both his parents were incarcerated
and his grandmother was on probation and had become unable to handle K.K.D.  There was
uncontroverted testimony that, at a minimum, K.K.D. needs around-the-clock supervision from a
residential sex-offender treatment program; in light of such necessity, it would not be reasonable to
attempt to place K.K.D. back in his "home," if indeed such home existed.  Although in some
instances the Department would be required to demonstrate it had attempted to keep the juvenile in
his home, this is not such an instance. 
	K.K.D. also argues that there is no evidence the Department took efforts to find an
alternate placement for him with other relatives.  However, the family code does not require the
Department to investigate every possible alternative to TYC commitment.  See Tex. Fam. Code Ann.
§ 54.04(i)(1); Echols v. State, 481 S.W.2d 160, 161-62 (Tex. Civ. App.--Houston [14th Dist.] 1972,
no writ).  Also, K.K.D.'s trial counsel did not put forward placement with other relatives as a
possibility.  In fact, his counsel argued that a residential facility was the best option for him, just not
the TYC but a facility such as Pegasus.  There is no evidence in the record that would have
necessitated the trial court exploring placement with alternate relatives.  Accordingly, considering
the violent nature and gravity of K.K.D.'s conduct and all the evidence, we conclude the evidence
was not factually insufficient or so against the great weight and preponderance of the evidence as
to be manifestly unjust.  See In re M.A.C., 999 S.W.2d 442, 448 (Tex. App.--El Paso 1999, no pet.)
(evidence showing parents' lack of control over juvenile and juvenile's failure to qualify for only
other available alternative to TYC was factually sufficient to support finding that reasonable efforts
had been made to prevent juvenile's removal from home).  We overrule K.K.D.'s second point of
error.  Likewise, there is legally sufficient evidence to support the disposition, and we thus overrule
K.K.D.'s third point of error.
	Once the juvenile court has properly made the findings required by section 54.04 of
the family code, its discretion to determine disposition attaches.  C.C., 13 S.W.3d at 859.  "[T]he
juvenile court possesses broad discretion to determine a suitable disposition of a child adjudicated
delinquent."  In re J.R., 907 S.W.2d 107, 110 (Tex. App.--Austin 1995, no writ).  Absent an abuse
of discretion, we will not disturb a juvenile court's findings.  C.C., 13 S.W.3d at 859; see M.S., 940
S.W.2d at 791.  A trial court abuses its discretion when it acts in an unreasonable and arbitrary
manner, or without reference to any guiding rules or principles.  See Beaumont Bank, N.A. v. Buller,
806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985).  This Court may not reverse for abuse of discretion merely because we disagree with
the decision of the trial court.  See Buller, 806 S.W.2d at 226; Downer, 701 S.W.2d at 242.  In light
of our determination that the evidence was legally and factually sufficient to support the forty-year
determinate sentence, we conclude that the trial court did not abuse its discretion and overrule
K.K.D.'s first point of error.

CONCLUSION

	The evidence was legally and factually sufficient to support the trial court's
determination that reasonable efforts were made to prevent or eliminate the need to remove K.K.D.
from his home, and the trial court therefore did not abuse its discretion in making this finding.  We
thus affirm the disposition of the juvenile court.


 	__________________________________________
					Bea Ann Smith, Justice
Before Justices Kidd, B. A. Smith and Pemberton
Affirmed
Filed:   August 12, 2004
