in the Matter of v. F., a Juvenile

• Court: Court of Appeals of Texas
• Decided: January 4, 2023
• Docket: 08-21-00192-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-21-00192-CV

§ Appeal from the

IN THE MATTER OF V.F., § 65th District Court

A JUVENILE. § of El Paso County, Texas

§ (TC# 1900883)

§

OPINION

Appellant, V.F., a juvenile whose conduct the court previously adjudicated as delinquent,

urges the trial court abused its discretion when it modified its earlier judgment by committing him

to the custody of the Texas Juvenile Justice Department (the TJJD). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 9, 2019, V.F. was referred to the Juvenile Probation Department (the

Department) at the age of fourteen for the offenses of possession of two ounces or less of marijuana

and tampering with or fabricating evidence. While these charges were pending, V.F. was again

referred to the Department, this time for two counts of aggravated assault with a deadly weapon, a felony offense. See TEX.PENAL CODE ANN. § 22.02. V.F. admitted to the two counts of

aggravated assault and the two pending offenses were dismissed on March 5, 2020. The juvenile

court adjudicated V.F. on the two aggravated assault charges and placed V.F. on supervised

probation with an out-of-home placement at the Challenge Academy, which he completed

successfully in December 2020.

In January 2021, V.F.’s father reported him to be out of control, having left the home to

fight other juveniles who were provoking him on social media. The juvenile court issued a

Directive to Apprehend as V.F. had violated the terms of his probation in leaving home

unaccompanied by a parent. V.F. turned himself in, tested positive for marijuana, and was again

placed at the Challenge Academy. He completed the program again and was released with a GPS

monitor in May. On June 6, the police were called to V.F.’s home due to a physical altercation

between V.F. and his brother.

The Department recommended terminating probation in August, but the juvenile court did

not follow the recommendation. Instead, the court extended V.F.’s probation to give him time to

complete his counseling, informing the Department that probation could be terminated once

probation was completed. As incentive for V.F. to continue to comply with his probation, on

August 9, the court gave V.F. a curfew of 6:00 p.m. The next day, V.F. committed a new offense

for possession of less than two ounces of marijuana; violated his probation by skipping school,

associating with negative peers, and missing his curfew; and tested positive for marijuana and

benzodiazepine. The State moved to modify disposition, alleging commission of a new offense,

consumption or possession of controlled substances, and association with prohibited individuals.

V.F. admitted to these allegations.

2 A hearing was held on September 24, 2021, on the modification of disposition. The State

introduced several supporting documents, including a modification disposition report, a behavioral

health assessment, and a PACT full-screen summary report. According to testimony at the hearing

and these reports, as of the date of the modification disposition hearing, V.F. had a total of six

referrals to the Department. Two of those were for violations of probation, two were dismissals,

and two were adjudications. While on probation, V.F. tested positive for marijuana on February

11, 2021, and August 11, 2021. In the past, he had used liquid THC, cocaine, Lean, ecstasy,

Dextromethorphan, and alcohol, but he claimed not to have a substance abuse problem. The

modification disposition report indicates the Department attempted to address V.F.’s substance

use, anger control issues, poor decision-making skills, and family issues, but their efforts did not

have a positive effect. It states V.F. struggles to overcome his problems and uses negative coping

skills to adapt. V.F.’s behavioral health assessment evaluated V.F. as being at a high risk for

reoffending and a high risk for violence.

At the modification hearing, Sonia Solis, a juvenile probation officer, testified the

Department recommended V.F. be committed to the TJJD. Solis said the basis for the

recommendation was that V.F. continued to use drugs, associate with negative peers, and did not

follow the terms and conditions of his probation. She testified the Department initially wanted to

recommend placing V.F. in the Serious Habitual Offender Comprehension Action Program within

the TJJD, a zero-tolerance, last-chance probation program, with a suspended sentence. The

modification report indicates the staffing committee was not in agreement about that

recommendation and they concluded V.F. continued to disregard the terms and conditions of his

probation and his parents lack the skills to discipline him. Solis testified V.F. would continue to

3 receive services after commitment; that he would be evaluated and placed in programs that best

suit his rehabilitative needs.

Solis testified V.F. was first referred to the Challenge Academy due to the serious nature

of the aggravated assault charges. V.F.’s aggravated assault charges arose from his stabbing of two

kids at his high school. V.F. reported during his behavioral assessment he had a history of twenty-

thirty fights in his lifetime, two involving knives that resulted in serious injuries to his victims.

Solis further testified V.F. has been diagnosed with mega depressive disorder, conduct

disorder, Cannabis disorder, Xanax disorder, and alcohol disorder. Solis testified V.F. had been

seeing a counselor, but he missed two sessions. She stated V.F. was truthful and admitted to his

past behaviors, and his mother knowingly and willingly participated in the behavioral assessment.

The modification disposition report recommended that V.F. be placed in a secure residential

treatment facility that would address substance use and therapeutic needs.

Regarding his family life, Solis stated V.F.’s mother made efforts to set V.F. on the right

track. Solis stated V.F.’s father would immediately call law enforcement and probation and his

mother said the father no longer lived in the home. V.F.’s mother testified at the modification

hearing that she had been too lenient with V.F. in the past but now that she was working from

home, she could supervise V.F. more. She testified she was unaware he had been selling drugs and

stealing. The modification disposition report stated the Department believed V.F.’s parents

contributed to his delinquency.

In comments to the court at the close of the case, V.F. stated he regretted his decisions in

the past and he had become a better person through the Challenge program. He said he was

disappointed in himself, and he planned on getting his GED and working.

4 After the testimony, the court followed the State’s recommendation that V.F. be committed

to the TJJD. This appeal followed.

II. DISCUSSION

In his sole issue, V.F. claims the trial court abused its discretion when it found it was in

V.F.’s best interest to commit him to the TJJD. We disagree.

Standard of Review and Applicable Law

We review a juvenile court’s modification of an earlier disposition order for an abuse of

discretion. See In re V.L.T., 570 S.W.3d 867, 869 (Tex.App.—El Paso 2018, no pet.). A juvenile

court has broad discretion in determining a suitable disposition for a child who has been

adjudicated as having engaged in delinquent behavior, but it abuses that discretion “when it acts

unreasonably or arbitrarily without reference to any guiding rules or principles.” Id. (citing Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)).

A juvenile court’s determination whether to modify a disposition order is guided by section

54.05 of the Texas Family Code. Id. When the disposition to be modified was based on a felony

offense, the disposition may be modified to commit the child to the TJJD if the court determines

by a preponderance of the evidence the juvenile violated a reasonable and lawful order of the court.

Id.; see TEX. FAM. CODE ANN. § 54.05(f). In modifying a disposition order by committing the child

to the TJJD, the court must determine and include it its order that (1) placing the child outside the

child’s home is in the child’s best interests; (2) reasonable efforts were made to avoid removal

from the home and to make it possible to return; and (3) the quality of care and level of support

and supervision the child needs to be able to meet the conditions of probation cannot be provided

to the child in the child’s home. See In re V.L.T., 570 S.W.3d at 869; TEX.FAM.CODE ANN.

§ 54.05(m).

5 Our review follows a two-pronged analysis: “(1) was there sufficient information upon

which to exercise discretion, and (2) did the juvenile court err in its application of discretion?” In

re V.L.T., 570 S.W.3d at 869. We review the evidence supporting the juvenile court’s findings

under the civil sufficiency of the evidence standards. Id. In determining whether there was legally

sufficient evidence to support a finding, “we consider evidence favorable to the finding if a

reasonable fact finder could and disregard evidence contrary to the finding unless a reasonable fact

finder could not.” Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005)).

After considering all the evidence in the record, we will set aside a finding only if we determine

“the credible evidence supporting the finding is so weak, or so contrary to the overwhelming

weight of all the evidence, as to be manifestly wrong.” Id. (citing Cain v. Bain, 709 S.W.2d 175,

176 (Tex. 1986)).

Analysis

V.F. argues the trial court erred in determining it was in his best interest to commit him to

the custody of the TJJD. We must conclude, then, whether there was sufficient evidence to support

the court’s exercise of discretion in doing so. See In re V.L.T., 570 S.W.3d at 869.

The uncontradicted modification testimony established V.F.’s parents have not been able

to provide the structure or discipline to help V.F. succeed while on probation. Ms. Solis testified

his father resorts to calling the authorities rather than being able to discipline V.F. himself, and

V.F.’s mother admitted she had been too lenient and had not been aware of V.F.’s criminal

behavior. The trial court commented that V.F. “[does] well when [he’s] in a structured

environment,” and that he’s not a bad kid, but his circumstances and bad decisions led to this

outcome.

6 The evidence before the court demonstrated V.F. was able to successfully complete the

out-of-home placement at the Challenge Academy, twice, but upon release home to his mother,

each time, he promptly violated his probation. Within a month after his first release, he was using

marijuana and fighting again. After his second release, he soon was fighting at home, he continued

to use marijuana, and he violated his probation again by hanging out with negative peers, skipping

school, and missing his curfew. When a juvenile originally committed a felony and subsequently

violates one or more conditions of probation, section 54.05 allows a trial court to decline third and

fourth chances to a juvenile who has abused a second one. In re J.P., 136 S.W.3d 629, 633 (Tex.

2004).

The record before the trial court demonstrated the juvenile probation department initially

recommended giving V.F. a last-chance attempt at probation, but they determined his continued

drug use, association with negative peers, and violation of probation weighed against that option.

V.F.’s successful completions of the program at the Challenge Academy indicate he is capable of

making positive changes, but his continued probation violations upon release demonstrate he has

not yet learned how to consistently make decisions that are in his best interest on his own.

Finally, in matters under other parts of the Family Code, the best interests of children are

often paramount, but in matters under the Juvenile Justice Code, the best interests of children who

engage in serious and repeated delinquent conduct are superseded to the extent they conflict with

public safety. Matter of R.S., No. 02-22-00165-CV, 2022 WL 17494602, at *3 n.4 (Tex.App.—

Fort Worth Dec. 8, 2022, no pet. h.)(mem. op.)(citing In re J.P., 136 S.W.3d at 633). Here, the

evidence shows V.F.’s original offenses of aggravated assault caused serious injury to two of his

fellow high school students. Despite being on probation for those assaults, V.F. continued fighting.

Within a month after being released from the Challenge Academy the first time, V.F. violated his

7 probation by fighting in a park over provocation on social media. Within a month after being

released from the Challenge Academy the second time, the authorities were called because V.F.

was fighting at home. This evidence of continued violence is evidence of threats to public safety

and support the trial court’s finding that V.F. may be dangerous to himself or may threaten the

safety of the public if released.

The record before us indicates the trial court considered all these factors in determining

V.F.’s disposition should be modified to commit him to the TJJD. This evidence provided

sufficient information upon which the trial court determined commitment to be in V.F.’s best

interest, and it did not abuse its discretion in doing so.

III. CONCLUSION

Having determined that the evidence before the trial court supported its finding that

committing V.F. to the custody of the Texas Juvenile Justice Department is in his best interest, we

affirm the trial court’s modification order.

YVONNE T. RODRIGUEZ, Chief Justice

January 4, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.