in the Matter of B. E. E., a Juvenile

                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 IN THE MATTER OF B.E.E.,                          §               No. 08-21-00121-CV

 A JUVENILE.                                       §                  Appeal from the

                                                   §            65th Judicial District Court

                                                   §             of El Paso County, Texas

                                                   §                  (TC# 1500872)


                                          OPINION

        B.E.E., a juvenile, appeals from the juvenile court’s judgment committing him to the

Texas Juvenile Justice Department (TJJD). See TEX. FAM. CODE ANN. § 54.04(i). On appeal,

B.E.E. argues the evidence is insufficient to support the trial court’s finding that a commitment to

TJJD was in B.E.E.’s best interest. We affirm.

                                      I. BACKGROUND

   A. Procedural history

       On February 25, 2021, B.E.E., then sixteen-years-old, was adjudicated as having engaged

in delinquent conduct, namely, the offense of unauthorized use of a motor vehicle. See TEX. PENAL

CODE ANN. § 31.07. In April 2021, the trial court entered a judgment placing B.E.E. on supervised

probation until he reached his eighteenth birthday. Such probation included his removal from his

mother’s home and placement in the care, custody, and control of the Samuel F. Santana Challenge

Academy (Challenge Academy), a physically oriented behavior modification program. Probation

terms required B.E.E. to successfully complete the program. In June 2021, the State filed a motion
to modify disposition after discovering that B.E.E.’s diagnosed heart condition rendered him

unable to enter and complete the Challenge Academy’s program. The trial court later rendered an

administrative modification order, determining that, through no fault of his own, B.E.E. was not

able to undertake nor complete the terms and conditions of the last judgment of probation. As a

result, the court sustained the State’s motion to modify disposition and set the matter for a

disposition hearing later that month.

       B. The hearing

          1. The testimony and evidence

          At the disposition-modification hearing held later that month, juvenile-probation officer

Kenya Freddie testified regarding the juvenile probation department’s (Department’s) supervision

of B.E.E. and its disposition recommendation. In advance of the hearing, Freddie obtained a

psychiatric evaluation of B.E.E. and prepared a “modification-disposition” report and a “PACT”

assessment 1, all of which were admitted into evidence.

          Officer Freddie related B.E.E.’s history of adjudicated and non-adjudicated offenses,

which history was also detailed in her disposition report—B.E.E. had been referred to the

Department a total of nine times, and, including the instant offense, had been adjudicated for

delinquent conduct five times, which adjudicated offenses included prohibited weapon (knuckles)

in drug-free zone, possession of marijuana in an amount less-than two ounces, graffiti in a public

monument or school, and theft of property over $100 but less than $750. Officer Freddie’s report

and testimony showed that although B.E.E. successfully completed two probation terms in 2016

and 2017, respectively, B.E.E. continued to engage in delinquent conduct despite successfully

completing probation (and despite undergoing various rehabilitative programs while on intensive

supervised probation), and that multiple detention periods did not deter him from repeatedly



1
    “PACT” is an acronym for “Positive Achievement Change Tool.”

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violating his terms of probation. B.E.E. had also received individual and family counseling,

comprised of various therapy modalities, throughout his prior supervision by the Department. At

the time of the hearing, Officer Freddie also disclosed that B.E.E. had a pending misdemeanor

assault charge.

       According to Officer Freddie, B.E.E. had a history of drug and alcohol abuse, including

use of alcohol, marijuana, and hallucinogens. B.E.E.’s abuse of drugs began when he first used

marijuana at age nine and continued as recently as February 2021, just prior to his detention for

the instant felony; B.E.E. described his most recent drug and alcohol use as consisting of smoking

two-to-three blunts per day, three times a week, and drinking alcoholic beverages two-to-three

times a week. B.E.E. reportedly made his money selling drugs and stealing vehicles and was self-

admittedly a member of the Sixth Street gang, which he signaled by donning gang-identifying

tattoos on his neck and face.

       B.E.E.’s mother, M.G.M., reported to Officer Freddie that, for the most part, B.E.E. gets

along with her and his siblings. But she further explained that when he does not get his way, he

leaves the house without permission to hang out with negative peers and gang members. B.E.E.

himself admitted to Officer Freddie that he leaves his home for days at a time whenever he gets

frustrated over his mother’s refusal to let him go out or play video games.

       Officer Freddie believed B.E.E.’s mother tried her best to enforce B.E.E.’s terms and

conditions of probation and to address his mental, medical, and educational needs; she

communicated well with the Department, reported B.E.E.’s probation violations, and attempted to

keep B.E.E. from negative associations. Nonetheless, B.E.E. had a history of truancy and running

away, resulting in him being held back a grade in school. From August through December 2020,

when he was reported as a runaway, B.E.E. incurred a total of seventy-three unexcused class-

period absences, which led to his expulsion from Bel Air High School. Thereafter, B.E.E.’s mother



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unsuccessfully attempted to secure B.E.E.’s attendance at Jefferson High School, but she had to

withdraw him from enrollment mere weeks later because B.E.E. again ran away. It was not until

B.E.E.’s enrollment at the Delta Academy, following his detention for the instant offense, that

B.E.E.’s attendance and grades improved. There, B.E.E. received support and a variety of services

and he was now passing all but one class.

        Officer Freddie’s modification-disposition report indicated B.E.E.’s intelligence was

assessed at below-average, and he was diagnosed with various disorders, including, among others,

post-traumatic-stress       disorder,    attention-deficit-hyperactive         disorder,    conduct      disorder,

oppositional defiant disorder, and cannabis-use disorder (moderate in a controlled environment).

Due to his recent diagnosis of unspecified systolic congestive heart failure, he was not currently

receiving medication for these various disorders. B.E.E.’s heart condition made him ineligible for

the Challenge Academy’s physically oriented behavior-modification program.

        Based on the foregoing, Officer Freddie testified the Department recommended

commitment of B.E.E. to the care, custody, and control of the TJJD. As noted in the modification-

disposition report, given B.E.E.’s prior non-compliance with medical and mental-health treatment,

as well as his history of truancy and running away (thus impeding his educational progress), the

Department believed that commitment to TJJD would be in B.E.E.’s best interest. Specifically, it

would aid his rehabilitation, as it would ensure B.E.E.’s adherence to medical and mental-health

treatment, provide a battery of educational resources, (including technical-trade training), and

restrict interaction with negative peers. 2

        On cross-examination, Officer Freddie testified that, other than the Challenge Academy,

no other out-of-home placements were explored. Officer Freddie also agreed that the cardiologist


2
  The Department similarly initially recommended B.E.E. be placed at the Challenge Academy to provide a “higher
structured environment and restrictions” due to B.E.E.’s adjudication history, repeated referrals to the Department,
and failure to “tak[e] the initiative to change his behaviors.”


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who evaluated B.E.E. recommended that he undergo an MRI, a stress test, and cardio

rehabilitation, 3 none of which had yet been provided due to appointments not being available for

at least two months. Officer Freddie further mentioned the financial responsibility for these

services was greater than what the Department had expected, and they would otherwise be

available within TJJD. Officer Freddie agreed that B.E.E. had Medicaid coverage in the past, and

if B.E.E.’s mother currently qualified, he would be able to obtain such coverage again.

Additionally, Officer Freddie agreed various recommended medical and mental-health services

may be generally available in the community, that B.E.E.’s mother did not report him being

physically or verbally abusive at home, that B.E.E. reported recent attempts to refrain from

criminal activity and gang association, and that his mother was supportive of his rehabilitation.

Concerning B.E.E.’s recommended cardiological treatment, Officer Freddie testified the

Department had been informed that B.E.E.’s medical needs would be addressed at TJJD. 4

         On re-direct, Officer Freddie testified B.E.E. had done poorly during his last detention;

B.E.E. incurred reports for initiating or engaging in fights with other juveniles, defying

prohibitions against accessing social media, instigating unit disruption by banging on doors and

attempting to flood the unit, not following directives, and being disrespectful to staff. Officer

Freddie testified while TJJD would be better able to take on the financial responsibility of B.E.E.’s

medical treatment, it would also be able to better address B.E.E.’s need for rehabilitation. Officer

Freddie had been familiar with B.E.E. and his family since 2019 and, having observed B.E.E. in



3
  B.E.E. contends on appeal that Officer Freddie “testified that Appellant’s treating physician recommended that [he]
be released so he could be treated for the heart condition.” When asked if it was the doctor’s recommendation for
B.E.E. to be released so that he could get treated in the community, Officer Freddie replied, “That was the
recommendation, yes, for him to get the treatment, yes.”
4
  Officer Freddie’s modification-disposition report noted that B.E.E. would be assessed by TJJD upon arrival and
thereafter referred to a specialist in the area. It also noted B.E.E. had a history of absconding and thus not making
himself available for medical or mental-health treatment and that TJJD “will assure the youth is transported to and
from all required medical appointments and he takes his medication as required by the medical doctor.” Further, B.E.E.
would “be assigned to a facility which can adequately treat his needs to include his medical needs.”

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various contexts, believed he does best when in a controlled environment that forecloses his

opportunities to engage in negative-peer associations and the ensuing negative decision-making.

       Before the conclusion of the hearing, M.G.M. offered a brief statement in opposition to the

Department’s recommendation. M.G.M. asked the trial court to allow B.E.E. to return home,

expressing she was afraid he would have a heart attack if not allowed to do so. She further testified

he was a good boy in her home, that he showed respect to her and other relatives. Additional to

this testimony, B.E.E. read into the record a letter he prepared in advance of the court’s ruling,

wherein he essentially claimed his new medical diagnosis provided the sort of awakening that

would allow him to now change his life and implored the court to allow him another chance to

show he could turn his life around.

       2. The trial-court’s ruling and findings

       Before making its ruling, the trial court noted the following:

       I remember when he was rejected from Challenge because of his medical condition,
       and I didn’t have any great desire to commit him to TJJD, but I had Ms. Freddie []
       check with them and make sure that they could address his medical needs and his
       psychiatric needs. . . . I wanted to make sure they can address this because otherwise
       I didn’t want to send him down there. They said they can provide for all of his
       medical needs[,] and I don’t agree that he is not a danger to the public. . . .[H]e does
       commit property crimes. He is out there by his own admission stealing cars to fuel
       his drug habit. And those property crimes are serious in that somebody loses their
       property and has to go get another car.

               So, he is not rehabilitated in my opinion and his medical issues are just
       another factor we have to take into consideration, but we also have to consider
       rehabilitating him. And the only place we have at this point is TJJD. . . . If I released
       him home, I have little confidence that he would get the treatment that he needs. I
       think he would probably just take off. I am not sure whether the mother has the
       financial means to get him the treatment. But I know he will get it at TJJD[,] and I
       know he has quite an extensive psychiatric history that has to be addressed too, . . .
       and they can provide for that.

       The trial court emphasized to B.E.E. that his drug use, his habit of running away, and his

overall lifestyle were not conducive to managing his health, and further, although his mother tried

her best, B.E.E. had shown he did not listen to her. The judge noted that “the doctor says you do


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much better in a structured setting,” 5 and assured B.E.E. that Officer Freddie “double-checked []

to make sure you are going to be treated well and we can get these conditions addressed.” In short,

the trial court reasoned that the commitment to TJJD would help address all the problems that

contributed to B.E.E.’s continued delinquency, and thus, it was “a blessing in disguise.”

         Finding that B.E.E. posed a risk to the safety and protection of the community if no

disposition was made, that B.E.E. needed to be held accountable for his delinquent behavior, that

the gravity of the offense and B.E.E.’s juvenile record indicated the need for confinement in a

secure facility, that he did not have a parent who could suitably supervise, control, or discipline

him, that reasonable efforts had been made to avoid removal of B.E.E. from his home, and that

B.E.E.’s behavioral and mental-health needs would not be met with available community

resources, the trial court entered an order and judgment of commitment.

         This appeal followed.


                               II. SUFFICIENCY OF THE EVIDENCE

         In his sole issue, B.E.E. challenges the sufficiency of the evidence to support the trial

court’s finding that his commitment to TJJD was in his best interest. 6 His only claim in this regard

is that the trial court had insufficient evidence from which to reasonably believe B.E.E. would

receive medical treatment for his heart condition at TJJD, rendering the trial court’s commitment

order against his best interest. The State essentially counters that the records and testimony

admitted into evidence show the Department sufficiently investigated and assessed B.E.E.’s needs

in determining it was in his best interest to be committed to TJJD, where his medical needs, among




5
  Dr. Tolulope Shada noted in his April 2021 psychiatric-evaluation report noted that being in a structed facility was
a mitigating factor for B.E.E.
6
  B.E.E. does not specify whether he challenges the factual or legal sufficiency (or both) of the evidence to support
the juvenile court’s best-interest finding. We thus review the complained-of finding under both sufficiency standards.

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others, would be met, and as such, the trial court did not abuse its discretion in finding commitment

to TJJD was in B.E.E.’s best interest. We agree with the State.

     A. Standard of review and applicable law

        A trial court’s modification of disposition is governed by Section 54.05 of the Texas Family

Code. See TEX. FAM. CODE ANN. § 54.05. A juvenile court that modifies a prior disposition and

commits a child to TJJD is required to recite in its order a determination 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 child’s home and to make it possible for the

child to return home; and (3) the child, in the child’s home, cannot be provided the quality of care

and the level of support and supervision that the child needs to meet the conditions of probation.

Id. § 54.05(m). B.E.E. challenges only the first of these required findings.

        As B.E.E. recognizes on appeal, juvenile courts are vested with a great amount of discretion

in determining the suitable disposition of children who have been found to have engaged in

delinquent conduct, especially in hearings to modify disposition. In re M.A.S., 438 S.W.3d 803,

806 (Tex. App.—El Paso 2014, no pet.); In re G.W., 396 S.W.3d 202, 204 (Tex. App.—El

Paso 2013, no pet.). As such, we review the order committing B.E.E. to the TJJD under an abuse-

of-discretion standard, which allows us to reverse the trial court only when it acts arbitrarily,

unreasonably, or without reference to guiding rules or principles. M.A.S., 438 S.W.3d at 806–07;

G.W., 396 S.W.3d at 204. A juvenile court does not abuse its discretion merely because it decides

a matter differently than the appellate court would in a similar situation, even when the trial court

bases its decisions on conflicting evidence. M.A.S., 438 S.W.3d at 807; G.W., 396 S.W.3d at 204.

Nor does an abuse of discretion occur as long as some evidence of substantive and probative

character exists to support the trial court’s decision. M.A.S., 438 S.W.3d at 807; G.W., 396 S.W.3d

at 204; see also In re A.T.M., 281 S.W.3d 67, 71 (Tex. App.—El Paso 2008, no pet.).



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       Under an abuse-of-discretion standard, the legal and factual sufficiency of the evidence are

relevant in evaluating whether the juvenile court abused its discretion. In re C.G., 162 S.W.3d 448,

452 (Tex. App.—Dallas 2005, no pet.). In reviewing the legal sufficiency of the evidence

supporting a juvenile court disposition, an appellate court considers the evidence and inferences

tending to support the court’s findings and sets aside the judgment only if there is no evidence of

probative force to support the findings. Id.; In re H.R.C., 153 S.W.3d 266, 269 (Tex. App.—El

Paso 2004, no pet.); In re C.J.H., 79 S.W.3d 698, 703 (Tex. App.—Fort Worth 2002, no pet.). We

consider the evidence in the light most favorable to the judgment and indulge every reasonable

inference that would support it. A.T.M., 281 S.W.3d at 71. Anything more than a scintilla of

evidence is legally sufficient to support the finding. C.J.H., 79 S.W.3d at 703. In reviewing the

factual sufficiency of the evidence supporting a juvenile court’s disposition, we consider and

weigh all the evidence and set aside the judgment only if the finding is so against the great weight

and preponderance of the evidence as to be clearly unjust. A.T.M., 281 S.W.3d at 71; C.G., 162

S.W.3d at 452; H.R.C., 153 S.W.3d at 269.

    B. The evidence is legally and factually sufficient to support the juvenile court’s best-
       interest finding

    The crux of B.E.E.’s claim on appeal is that, in concluding commitment to TJJD was in his

best interest, the trial court improperly relied on Officer Freddie’s in-court assertions that B.E.E.’s

heart condition could be treated at TJJD. B.E.E.’s contention in this regard is premised on the trial

court’s oral statements that it did not want to send B.E.E. to TJJD if his medical needs would be

left unaddressed.

       First, our review of the record shows that that trial court’s statements on this point are not

as narrow as B.E.E. contends. True, the trial court expressed great concern over B.E.E.’s heart

condition, but in context, its best-interest determination did not turn on this issue alone. Indeed,

before entering its commitment order, the trial court stated that B.E.E.’s “medical issues are just


                                                  9
another factor [it] ha[d] to take into consideration, but [it] also ha[d] to consider rehabilitating

him.”

        Second, even if TJJD’s ability to treat B.E.E.’s heart condition was the dispositive factor

in the best-interest analysis (which we do not so hold), we disagree with B.E.E.’s characterization

of the state of the evidence. Our review of the record shows that, in addition to Officer Freddie’s

testimony regarding TJJD’s ability to treat B.E.E.’s medical needs, the trial also had before it

Officer Freddie’s modification-disposition report, which the Texas Family Code expressly

authorizes it to consider when modifying a child’s disposition. See TEX. FAM. CODE ANN.

§ 54.05(e). After detailing B.E.E.’s newly diagnosed heart condition, as well as the cardiologist’s

examination and recommendations on further testing and treatment, Officer Freddie’s

modification-disposition report noted that B.E.E. would be assessed by TJJD upon arrival and

thereafter referred to a specialist in the area. Noting how B.E.E. jeopardized his mental-health and

medical wellbeing, as evinced by his history of absconding and thus not making himself available

for medical or mental-health treatment, Officer Freddie explained in her report that TJJD “will

assure [sic] the youth is transported to and from all required medical appointments and he takes

his medication as required by the medical doctor.” Further, she explained B.E.E. would “be

assigned to a facility which can adequately treat his needs to include his medical needs.” On

review, we disagree with B.E.E.’s assertion that the record contains nothing more than Officer

Freddie’s “blanket statement alone” that TJJD could address his medical needs and that this

evidence is unsupportive of the trial court’s best-interest finding. See In re M.O., 451 S.W.3d 910,

915 (Tex. App.—El Paso 2014, no pet.) (finding no abuse of discretion in TJJD commitment order

where record showed need for juvenile’s rehabilitation and need to protect the community based,

in part, on probation officer’s testimony that there was no less-restrictive alternative to TJJD that

could address juvenile’s needs); In re M.M., No. 09-98-234CV, 1999 WL 111279, at *3



                                                 10
(Tex. App.—Beaumont, Mar. 4, 1999, no pet.) (not designated for publication) (evidence

supporting best-interest finding was legally and factually sufficient where state therapist testified

in court she did not believe any long-term residential facility existed that could address juvenile’s

need for structured environment and medical treatment other than TYC [TJJD’s predecessor] and

where juvenile had become involved in drugs and gangs under mother’s care); cf. In re M.A.C.,

999 S.W.2d 442, 448 (Tex. App.—El Paso 1999, no pet.) (finding evidence supporting TYC

commitment order factually sufficient where probation officer asserted in court he spoke with

alternative placement’s director but determined juvenile was not a candidate for said program).

        Here, the trial court explained that Officer Freddie had been asked to “double-check” that

TJJD could adequately address B.E.E.’s medical needs. The evidence established that TJJD would

address not only B.E.E.’s need for medical treatment, but also his need for substance-abuse and

mental-health treatment, academic development, and would otherwise provide the kind of highly

structured environment that would help B.E.E. modify his behavior, which, despite his mother’s

support and guidance, B.E.E. had proved himself incapable of achieving at home; even while

detained, B.E.E. continued to display problematic behaviors, including initiating or engaging in

fights with other juveniles, defying prohibitions against accessing social media, instigating unit

disruption by banging on doors and attempting to flood his unit, not following directives, and being

disrespectful to staff.

        B.E.E. does not challenge on appeal the propriety of the trial court’s consideration of these

various other factors in making the required best-interest finding, and we conclude there is more

than a scintilla of evidence to support the trial court’s finding that commitment to TJJD was in

B.E.E.’s best-interest; we similarly find the evidence is not so against the great weight and

preponderance of the evidence as to be clearly unjust. See In re W.J.P., No. 01-19-00988-CV, 2021

WL 2931437, at *5–6 (Tex. App.—Houston [1st Dist.] July 13, 2021, no pet.) (mem. op.) (finding



                                                 11
evidence of juvenile’s history of leaving mother’s home without permission, continued and

repeated criminal conduct, issues at school, habitual drug use, and need for structured and secure

residential setting sufficient to support best interest finding).

        We overrule B.E.E.’s sole issue on appeal.

                                         III.    CONCLUSION

        We affirm the juvenile court’s judgment of commitment.



                                        GINA M. PALAFOX, Justice

December 28, 2022

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




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