in the Matter of S.A.G.

CONCURRING OPINION No. 04-06-00503-CV IN THE MATTER OF S.A.G., From the 289th Judicial District Court, Bexar County, Texas Trial Court No. 2000-JUV-01993A Honorable Carmen Kelsey, Judge Presiding Opinion by: Karen Angelini, Justice Concurring opinion by: Steven C. Hilbig, Justice Dissenting opinion by: Catherine Stone, Justice Sitting: Catherine Stone, Justice Karen Angelini, Justice Steven C. Hilbig, Justice Delivered and Filed: March 14, 2007 I concur in the result reached by the majority; however, I write separately to address the propriety of using section 51.01 of the Juvenile Justice Code (1), which is entitled "Purpose and Interpretation," as a standard for determining whether a trial court has abused its discretion in placing a juvenile on probation outside the home or in the Texas Youth Commission. See Tex. Fam. Code Ann. § 51.01 (Vernon 2002). Background In her initial appearance in the trial court, S.A.G. was adjudicated as a child who engaged in delinquent conduct for committing the offense of burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(1), (c) (Vernon 2003). S.A.G. was placed on probation. Over time, the State filed numerous motions to modify disposition. This appeal concerns the State's fifth motion in which it alleged that S.A.G., who previously had been placed in a residential treatment facility, failed to follow the facility's rules by attempting to escape and failed to pay restitution and fees. At the conclusion of the hearing on the State's motion, the trial court found the allegation of a violation of the facility's rules true, but found the allegation of a failure to pay restitution and fees not true based on indigency. The trial court committed S.A.G. to the Texas Youth Commission (TYC). In support of its decision, the trial court complied with the requirements of sections 54.05(i) and (m) of the Juvenile Justice Code. See Tex. Fam. Code Ann. §§ 54.05(i), (m)(1) (Vernon Supp. 2006). Issue on Appeal On appeal, S.A.G. raises only one issue: The trial court abused its discretion when it committed Appellant to the Texas Youth Commission, because the commitment was not justified in light of the purposes of the Texas Juvenile Justice Code. (emphasis added). Notably, she does not challenge the findings made by the trial court pursuant to section 54.05(m). So the question is, does the purposes section of the Juvenile Justice Code afford a juvenile offender substantive rights upon which appellate relief can be sought? According to the majority opinion, as well as other opinions from this court, it does. This is where I must differ with the majority in this case and the court generally. I believe a complaint that the trial court "violated" the purposes section of the Juvenile Justice Code does not, in either a modification or an original disposition, create a viable ground for appellate review because that section does nothing more than state the goals the Juvenile Justice Code was enacted to achieve. See Tex. Fam. Code Ann. § 51.01 (Vernon 2002). While the goals expressed in section 51.01 are laudable, it is axiomatic that no relief should be available for an alleged violation of a mere goal. Prior Opinions from this Court It is easy to understand why appellant has based her issue on the purposes section. Beginning with In re K.T., the court has converted section 51.01 from a statement of goals to a purported standard by which the court of appeals reviews the trial court's exercise of its discretion. See In re S.A.G., Majority Opinion, No. 04-06-00503-CV, ___ S.W.3d ___, (Tex. App.-San Antonio 2007, no pet. h.); In re M.J.A., 155 S.W.3d 575, 577 (Tex. App.-San Antonio 2004, no pet.) (en banc); In re K.T.,107 S.W.3d 65, 74 (Tex. App.-San Antonio 2003, no pet.) (en banc). More specifically, the court is using the purposes section as a purported standard to determine if the trial court abused its discretion in: (1) removing a juvenile offender from the home; and (2) committing a juvenile offender to TYC. See id.; see also Tex. Fam. Code Ann. §§ 54.04(i); 54.04(m) (Vernon Supp. 2006). As stated previously, I believe using the purposes section as a purported standard is improper, but more importantly, is unnecessary in either instance. Removal from the Home This court in K.T. suggested section 51.01 of the Juvenile Justice Code contains the standard courts should use to determine whether the trial court abused its discretion in removing a juvenile offender from the home. K.T., 107 S.W.3d at 74. The court has since adopted the suggested standard. See, e.g., In re M.J.A., 155 S.W.3d at 577. It is my opinion that the proper legal standards by which an appellate court determines whether a trial court has abused its discretion in removing a juvenile offender from the home are contained in sections 54.04(i) and 54.05(m) of the Texas Family Code. (2) According to these sections, to order placement outside the home, the trial court must make three findings: (1) it is in the child's best interests to be placed outside the home; (2) reasonable efforts were made to prevent or eliminate the need for removal from the home and to make it possible for the child to return home; and (3) in the home the child cannot be provided the necessary care, support, and supervision to meet probation conditions. See Tex. Fam. Code Ann. §§ 54.04(i)(1); 54.05(m)(1) (Vernon Supp. 2006). There is absolutely no need to refer to the purposes section or use it as a standard even though reviewing courts may and have referred to it as a justification for their decisions. See, e.g., In re J.P., 136 S.W.3d 629, 632-33 (Tex. 2004). If a juvenile offender believes the evidence does not support the trial court's decision to remove the juvenile from the home based on findings made pursuant to section 54.04(i) or 54.05(m), he is free to allege an abuse of discretion based upon a lack of evidence to support the necessary findings. See, e.g., In re J.G., 195 S.W.3d 161, 186-87 (Tex. App.-San Antonio 2006, no pet.) (holding trial court did not abuse its discretion in finding that reasonable efforts were made to prevent or eliminate need for removal from home and that home could not provide necessary quality of care, support, and supervision to allow appellant to meet probation conditions). On appeal, the court reviews the evidence in the light most favorable to the trial court's ruling to determine if it supports the challenged finding or findings made pursuant to sections 54.04(i) or 54.05(m). See J.G., 195 S.W.3d at 187. There is absolutely no basis for either a complaining juvenile offender or the court to rely upon the purposes section as the standard for review. Commitment to TYC This court has also relied on its reasoning in K.T. to determine whether a trial court has abused its discretion in placing the juvenile offender in TYC rather than on probation outside the home - the real complaint raised by Appellant in this case. See In re S.A.G., Majority Opinion, No. 04-06-00503-CV, ___ S.W.3d ___, (Tex. App.-San Antonio 2007, no pet. h.). This determination is independent of a review of the trial court's decision to place the offender outside the home, and relates to those situations in which the evidence supports placement outside the home based upon the standards in sections 54.04(i) or 54.05(m), but the appellant complains the trial court abused its discretion in committing him or her to TYC. The majority apparently believes that just as there is no standard by which to review the trial court's exercise of discretion in placing a juvenile outside the home (thereby requiring the creation of a standard based on the purposes section), there is no standard by which to review the trial court's exercise of discretion in committing a juvenile to TYC, thereby requiring reliance on the previously created standard. I disagree. In my opinion the Texas Supreme Court has held not only that such review is permissible, but has provided reviewing courts the appropriate standard by which to determine if there has been an abuse of discretion in such a commitment. See J.P., 136 S.W.3d at 632-33. Opinion from Texas Supreme Court J.P., decided after this court's decision in K.T., addressed the issue of whether the findings required by section 54.04(i) to remove a child from the home in an original disposition should be required, despite their absence from the statute, when a trial court modifies a disposition. Id. at 630-31. At the time the supreme court decided J.P., the legislature had not mandated that the findings required for an original disposition be required for a subsequent modification. (3) Id. at 631. The supreme court held, based on a plain reading of the statute, such findings were not required for a modification and to imply that they were would completely rewrite the statute. Id. at 631-32. In response to the suggestion that failing to require such findings would give trial courts unfettered discretion to remove children from their homes, the supreme court held that even in the absence of an apparent statutory standard, appellate courts had the inherent authority to reverse a trial court's arbitrary decision to remove a child from a home for a trivial infraction. Id. at 632. The court, summarizing the statutory provisions and the evidence it considered relevant to the trial court's decision to commit J.P., stated: Commitment to TYC by modification order is proper only if a juvenile originally committed a felony or multiple misdemeanors, and subsequently violated one or more conditions of probation. In such circumstances, the statute allows a trial court to decline third and fourth chances to a juvenile who has abused a second one. Here, the evidence at the modification hearing showed that J.P. assaulted detention center officers, created a flood by plugging his toilet, assaulted other residents, and on several occasions threatened to commit suicide. On the other hand, there was evidence the death of his father shortly after he entered the detention center contributed to the deterioration of his behavior, and a grandfather from New Hampshire indicated willingness to raise J.P. there. The trial judge's comments indicate careful consideration of J.P.'s circumstances, of possible alternatives to commitment, and of potential dangers each option provided. Given J.P.'s original adjudication of delinquency for serious offenses (which he does not contest), the previous commitment to the Hood County Detention Center for further delinquent conduct (which he does not contest), and the many offenses at the Center (which he excuses but does not contest), we hold the trial court did not abuse its discretion in modifying the previous disposition orders to commit J.P. to TYC. J.P., 136 S.W.3d at 633. Although the supreme court did not expressly articulate a standard for reviewing the trial court's decision to commit a juvenile offender to TYC, I believe the court's analysis reveals the standard: commitment of a juvenile offender to TYC is arbitrary, and therefore an abuse of discretion, if the violation of probation is trivial and the trial court failed to consider and attempt reasonable, appropriate alternatives. See id. at 631 -33. (4) Conclusion I concur with the result reached by the majority because, using the standard found in J.P., I do not believe the trial court abused its discretion in committing S.A.G. to TYC. However, because I believe this court has created a purported standard of review that is based on what are no more than legislative goals, a standard the supreme court declined to adopt, and a standard that is simply unnecessary, I cannot join its opinion. I urge the court to reconsider the continued viability of reviewing a trial court's decision based on purported violations of section 51.01 in light of the supreme court's opinion in J.P.. Steven C. Hilbig, Justice 1. I will refer to this provision throughout the concurrence as either section 51.01 or the purposes section. 2. Section 54.04(i), which applies to original dispositions, states, in pertinent part: (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. Tex. Fam. Code Ann. § 54.04(i)(1) (Vernon Supp. 2006). Section 54.05(m), which applies to modifications, states, in pertinent part: (m) 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 a 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 child's home and to make it possible for the child to return 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. Tex. Fam. Code Ann. § 54.05(m)(1) (Vernon Supp. 2006). 3. Section 54.05(m) was added by the legislature in 2005 - apparently in response to the suggestion of the concurrence in J.P. See J.P., 136 S.W.3d at 634 (Schneider, J., concurring). 4. I recognize the supreme court quoted the purposes section in J.P.. See id. at 632-33. It is clear, however, the court was not holding or even suggesting the section was a standard by which to determine whether the trial court had abused its discretion in committing J.P. to TYC. Rather, the court was merely referring to the purposes section as a justification for its holding that the section 54.04(i) findings were not required to be made when the trial court modified a disposition. See id.