      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00420-CV




                                    In the Matter of J. A. B.




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. J-29,744, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               J.A.B. appeals the juvenile court’s order modifying disposition and committing him

to the Texas Youth Commission for a four-year determinate term. He contends that the court’s

decision to commit him to the TYC rather than continuing him in a local residential program is

unsupported by evidence and an abuse of discretion. We find this contention to be without merit and

affirm the court’s order.

               J.A.B. was adjudicated delinquent based on a finding that he committed

aggravated assault with a deadly weapon. The juvenile court’s initial disposition placed J.A.B. on

determinate-sentence probation in the custody of the Intermediate Sanction Center. One of the

conditions of probation was that J.A.B. successfully complete the ISC residential program. Two

months later, the State moved to modify disposition, alleging that J.A.B. had been unsuccessfully

discharged from the ISC program. At a hearing on the motion, J.A.B. admitted this violation, and

the juvenile court found that he had violated a lawful condition of his probation. After hearing
testimony by J.A.B.’s probation officer, the court modified disposition to commit J.A.B. to the TYC.

See Tex. Fam. Code Ann.§ 54.05(j) (West 2008). J.A.B. does not challenge the juvenile court’s

determination that he violated the terms of his probation. He challenges only the decision to commit

him to the TYC.

                Juvenile courts have broad discretion in determining the proper disposition of

children who have engaged in delinquent conduct, and we review a court’s decision to see whether

it acted in an unreasonable or arbitrary manner. In re A.I., 82 S.W.3d 377, 379-80 (Tex.

App.—Austin 2002, pet. denied). An order modifying disposition to commit a juvenile to the TYC

must reflect that the juvenile court found that (1) it is in the child’s best interests to be placed outside

the child’s home, (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 the

home, cannot be provided the care, support, and supervision needed to meet the conditions of

probation. Tex. Fam. Code Ann. § 54.05(m) (West 2008).1

                The modification hearing began on May 5, 2009. Aaron Gilland testified that he had

been J.A.B.’s probation officer since J.A.B. entered the ISC in March. Gilland testified that J.A.B.

has “numerous issues of stealing food, anger issues, some defiance towards staff.” J.A.B. had been

discharged from the ISC after he broke a fire sprinkler head and flooded his room and other portions

of the residential unit. Gilland understood that J.A.B. had done this because he was angry at being

disciplined for stealing food from the cafeteria. Gilland testified that J.A.B. was subject to outbursts


  1
     J.A.B. refers us to the statement of purpose and interpretation of the juvenile justice code. Tex.
Fam. Code Ann. § 51.01 (West 2008). The purposes of the code expressed in section 51.01 are
reflected in the findings required by section 54.05(m).

                                                     2
of violent and threatening behavior, that “ISC is just not giving [him] what he needs,” and that J.A.B.

needed the more structured environment of the TYC. Gilland testified that the ISC or some other

residential program was inappropriate for J.A.B., and expressed the probation department’s belief

that commitment to the TYC was in the best interest of J.A.B. and the community.

               During cross-examination, Gilland testified that J.A.B. had been living in the juvenile

detention facility since his discharge from the residential program, and that “he’s doing a lot better

in detention.” While living in detention, J.A.B. had not displayed the anger and defiance toward

staff that had resulted in his removal from the residential setting.

               Gilland also prepared a written update to the probation department report that had

been submitted to the juvenile court in February 2009, at the time of J.A.B.’s initial adjudication and

disposition. See id. § 54.05(c). The earlier report detailed J.A.B.’s drug abuse problems, prior

referrals to juvenile court, and commitments to the TYC. The report stated that both of J.A.B.’s

parents, who separated when he was seven, have criminal records and histories of drug and alcohol

abuse. The update detailed the conduct and attitude problems that had resulted in J.A.B.’s discharge

from the residential program. It stated that J.A.B. had received psychiatric treatment, but he refused

to take his prescribed medications. Although J.A.B. was legally in the custody of his father, his

father was “unable to make contact with [J.A.B.]” because he was in an inpatient drug rehabilitation

program. J.A.B.’s mother was living in Rockport and had attended inpatient drug treatment. She

had been “very communicative with the department throughout the course of [J.A.B.’s] stay in

ISC residential.”




                                                  3
               At the conclusion of Gilland’s May 5 testimony and after hearing arguments by

counsel, the juvenile court recessed the hearing until June 16 and ordered J.A.B. back to the ISC

residential program. The court admonished J.A.B., “[Y]ou can tell me what you want. You can tell

me in two ways; with your words or with your actions between now and then. Do you want that or

not? Because those are my two options; it’s that or TYC. And I’ll give you whichever you want.”

               When the hearing resumed on June 16, Gilland testified that J.A.B. “had done better

[in the ISC] than he did before,” but “he’s not had a clean slate.” Since being returned to the

residential program in May, there had been incident reports for cursing, “being disgruntled about a

small portion of food,” slapping another resident on the back of the head (which Gilland suggested

was “kind of playing”), and being disrespectful to staff. Nevertheless, it was now the probation

department’s recommendation that J.A.B. remain in the ISC and not be committed to the TYC.

Gilland testified that he would like to see J.A.B. moved to the substance abuse unit, “where he needs

to be anyway.” Gilland reported that J.A.B.’s mother had been speaking to J.A.B. by telephone and

wanted him to move to Rockport to live with her, but Gilland testified that the probation department

did not believe that J.A.B. was ready to be released. J.A.B.’s father had been “trying to rekindle a

relationship with [J.A.B.] and coming to the parenting group.” Gilland testified, “[J.A.B.] has been

at TYC twice. We don’t feel at this time like TYC is going to solve his problem. We would like

to do it here. We think that he has it in him, you know. But [he] is going to have to want to change.”

               There is no question that the evidence supports the juvenile court’s determination that

reasonable efforts had been made to eliminate the need for removing J.A.B. from his home, but that

his parents could not provide the support and supervision he needs and that it was in his best interest



                                                  4
to be placed outside his home. See id. The question presented is whether the court abused its

discretion by committing J.A.B. to the TYC rather than keeping him in the ISC residential facility.

               J.A.B. contends that the juvenile court’s decision was an abuse of discretion in light

of Gilland’s June 16 testimony. He argues that on June 16, he was in a secure residential facility and

doing so well that the probation department had withdrawn its earlier recommendation that he be

committed to the TYC. J.A.B. argues that the goal of the juvenile justice system is treatment and

rehabilitation in the least restrictive environment appropriate to the child’s circumstances.2 He urges

that no evidence was adduced at the June 16 hearing to show that commitment to the TYC would

improve on the treatment and rehabilitation he was receiving at the ISC. To the contrary, Gilland

expressed the opinion that the TYC could not help J.A.B.

               We must review the juvenile court’s decision in light of all the evidence it had before

it. The evidence reflects that J.A.B. had been consistently undisciplined and uncooperative during

his initial stay in the ISC, and that both his behavior and his attitude improved when he was

transferred to the more structured environment of the juvenile detention facility. Despite the court’s

warning that this was his last chance to avoid TYC commitment, J.A.B.’s disciplinary problems

resumed when he was returned to the ISC on May 5, albeit at a less serious level. In light of this




  2
    Section 51.01, cited by J.A.B., expresses a preference for keeping a delinquent child in a family
environment in the custody of his parents, a preference that is also reflected in section 54.05. See
Tex. Fam. Code Ann. §§ 51.01(5), 54.05(m) (West 2008). J.A.B. cites no statutory authority for his
assertion that when a child must be removed from his home, a local residential institution is to be
preferred over the TYC.

                                                  5
evidence, the court’s decision to commit J.A.B. to the TYC rather than continue him in the ISC

program, while undoubtedly difficult, was neither unreasonable nor arbitrary. No abuse of discretion

is shown.

               The order modifying disposition and committing J.A.B. to the Texas Youth

Commission is affirmed.




                                              ___________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 19, 2010




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