COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

I N THE MATT ER OF S.J .C., A J UVENI L E. § § § § § § No. 08-08-00284- CV

Appea l from the 65th District Court of El Paso County , Texas (TC# 08,00075)

O P I N I O N I n this juvenile proce eding , the child’s mother appea ls a finding that she contributed to her son’s delinquency , urg ing tha t the evidenc e wa s insufficient to support that conclusion. The State initially responde d on the merits. I n a supplemental brief, the State now urg es that this issue is moot,

as the juvenile has completed his term of probation. Finding that the issue falls within the collater al conseque nces exception to the mootness doctrine, we addre ss the merits of the appea l. We conclude that the evidenc e is le g ally insufficient to suppor t the challeng ed finding , and we there fore reve rse the judg ment as to that finding only

. F ACTS S.J .C. was char g ed by petition with eng ag ing in de linquent conduct in the form of marking with indelible marke r on a bathroom sink, mirrors and tile walls in v i o l at i o n of T E X . P E N . C O D E AN N . § 28.08. An attorney was appointed to repr esent the child, and with his attorney ’s concur renc e the child ag ree d to a hear ing befor e the juvenile court ref ere e without a jury

. The child pleade d true to committing the offe nse of g raf fiti misdemeanor both in open court and by written waiver , stipulation and admission.I n her predisposition repor t, juvenile probation office r Dora R odarte noted that t he child’s mother was a subst itute teac her for El Paso I

. S .D., and the father had not been in contac t with the child for many y ear s. The mother has n o cr i m i n al h i story

. She attended a PEACE meeting on Aug ust, 11, 2008. The child participa ted in sc hool ba nd and swim team a

nd attended c hurch w ith his mother on Wednesday s and Sunday s. He ha d no curf ew be cause he rarely went out, but when he did his mother would drive him to and from the event. I t was the probation office r’s opinion that the mother had not contributed to the child’s delinquent behavior , as the mothe r m ad e s u re the juvenile was involved in positive activities and maintained contac t with school officia ls. The office r noted that the delinquent be havior wa s attributable to neg ative assoc iations and pee r pre ssure. A dispositi on hear ing was held on Aug ust 27, 2008, befor e juvenile court ref ere e Richard Ainsa. The predisposition r eport was enter ed in e vidence at the hear ing. Offic er Rodarte testified that she believed that the child was in need of reha bilitation, and rec ommended that he be place d on supervised probation with a 5 p.m. curf ew until he turned 18, with a revie w hear ing in four months. Rodarte testified that the child had committed the g raf itti offe nse beca

use he wanted to be acc epted into the “Crazy Azz Tag g ing Crew” (which she noted was not a g ang ). At home, the child’s mother repor ted no problems with the child other than some “talking back” the y ear befor e, which was no longe r a problem. The child complied with his mother’s rules and did chore s such as pulling wee ds, clea ning his room and throwing out trash. S ometimes he would question these rules, but he did comply

. Offic er Rodarte further stated that the mother was able to provide proper control and supervision. She did not believe that the mother had contr ibuted to the delinquency

. Offic er Rodarte further testified that, in a conver sation befor e t h e h ea ri ng , she had

rec ommended to the mother that she be evalua ted at El Paso MHMR, and the mother responde d that if she was g oing to g o then the child had to g o too. Ms. Roda rte asked if there wer e any problems,to which the mother replied, “Well, I ’m the mother and there are a lot of problems.” Upon hear ing

that statement, the mother (in the courtroom but not on the w itness stand) stated, “ No, I didn’t say that.” The ref

ere e admonished her not to speak out of tu rn . L at er in Rodarte’ s testimony , she explained her re ason for

rec ommending tha t the mother attend c ounseling : The reason for this was that during the i nterview , the j u v en i le was fine, we talked, he was very open. Howeve r, when I spoke to the mother, when I interviewe d her, she seeme d to be–I was a littl e conce rned that may be she was a littl e depre ssed. She was cry ing a lot a bout w hat had happene d, stated that why wer e we opening up the case ag ain, that we w ere g oing to brea k up her family

. I told her to calm down and that ever y thing would be okay

beca use [the juvenile] appeare d fine. I was a littl e conc erne d also when I went to the home beca use it is a three bedroom home, two bath, howeve r, they only use one of the bedrooms beca use the home has a lot of things, y ou know, stacks o f b o o ks, clothes. She did indicate that she was try ing to ha

ve a g ara g e sale

. The juvenile’s mother also testified at the dispositi on hear ing. She explained that the child had a hard time in 2007 when they had moved to Neva da for a y ear . She also discussed her depre ssion–as a teacher she i s require d to issue ref err als on kids, and it was hard for her to acc ept that her own son was in trouble at school. She did not understand that the process would require her to come to court, and she had never been involved in any thing like this befor e. Th e re fer ee

rea ssured her, s ay ing, “Well, y ou didn’t do this. You didn’t do it so y ou shouldn’t be upset about it.” Upon questioning, she stated t h at she was willing to see a counselor. I n the judgme nt of probation, the court place d t h e j u v en ile on probation and also found that the child’s mother, by willful act or omission, had contri b u ted to, cause d, or encour ag ed the child’s delinquent conduct, and order ed her

to participate in the juvenile’s re habilitation. Some time afte r the hear ing, but still on the same day , the case went back on the rec ord beca use the mother and juvenile had ref used to sig n a copy of the ref ere e’s rec ommendations afte r having been order ed to do so. The juvenile had been returne d to school by this time, but the motherwas prese nt and the ref ere e told he r: “[Y]ou’re g oing to ha ve to sig n it [the rec ommendations] or 1
y ou’re g oing to g o to the county jail.” The f

ollowing e x chang e then oc curr ed: The Mother: Sir, I ’m not ref using to sign it. What y ou–hopefully it was rec orded in the hearing this morning

. You had mentioned t hat I was not–I had not contributed to his delinquency

. What y ou said and what she has written in the paper s are not in ag ree ment. Her

paper rea ds that I have. So, ther efor e, for that rea son, I – The Court: I didn’t comment on the re cord. The Mother : I have a sked her to go a head a nd have y ou fix that. The Court: No, bec ause I didn’t–. The Mother : What y ou said– The Court: Ms. Valdez, I didn’t make that finding on the rec ord, and whateve r is in my Orde r– The Mother : You mentioned it. Was it–was it rec orded e arlier ? The Court: Do y ou reme mber a ny thing a bout me mentioning that? Offic er Rodarte: I don’t know if y ou said it, Your Honor. I did say that we had not found that. The Court: I t was y our re commendation. Offic er Rodar

te: Right. The Court: That’s not my finding

. Offic er Rodarte: Howeve r, I ex p l ai n ed t o her that that was based on what she repor ted to me at the inter

view. Howe ver, r ight be fore we wa lked in and I told her about t he evaluation that I was going to have he r submit to, she said that there was issues and that she would not turn her son in, there fore , she was not truthful with me in the interview. The Mother : Well– The Court: No, ma’a m. You listen to me. That’s her rec ommendation. I don’t have

T h e r e i s n o i n d i c a t i o n i n t h e r e c o r d t h a t t h e m o t h e r w a s r e p r e s e n t e d , n o r t h a t t h e j u v e n i l e ’ s a t t o r n e y w a s 1 p r e s e n t d u r i n g t h i s e x c h a n g e .to follow it, and I didn’t follow it. I found t h at y ou contributed to the delinquency

of y our son. So that’s my finding

. I f y ou don’t like it, y our reme dy is to appea l my judgme nt. I ’m not g oing to change it. So y ou either sign that acknow ledg ing that y ou rec eived the judgme nt or y ou’re g oing to g o to the county jail. I f y ou don’t like what it say s in there , y ou’re fre e to appea l it. You have a cer tain amount of time afte r today to appea l it to another court to have it reviewe d.

. . . The Cour t : M a’ am, I didn’t say any thing. I didn’t say any

thing beca

use I didn’t ag ree with her rec ommendation, and I made a finding in there that y ou did contribute. The Mother : Now y ou’re chang ing y our story

. The Court: No. The Mother : Yes. The Court: Ms. Valdez, y ou’re g oing to make me lose my patience

. You either sign it or y ou’re g oing to the c ounty jail. The Mother: I t doesn’t matter. Do what y ou will with me. I t doesn’t matter to me. The Court: Then the Court’s finding y ou in contempt of court. You’ll rema in in the county jail until y ou sign it. You’ll sit there a s long a s it takes until y ou sign tha t. The Mother : Whatever. The Court: All rig ht. Take he r into custody

. The Mother : Good job, Dora. Stil l later, the ref

ere e broug ht the mother and juvenile back into the courtroom and prese nted them with a copy of the judgme nt of probation on the rec ord. He then rele ased the mother from custody

. A re view hea

ring was he ld on J anuar

y 7, 2009, at which time the juvenile’ s probation was terminated. MOOTNESS We first addre ss the State’s arg umen t t h at beca use the juvenile’s probation has been terminated, the single issue befor e us is moot and we should dismiss thi s appea l.When the judgme nt of t h i s C o u rt can have no eff ect on an exis ting controve rsy , a case become s moot. In the Matter of G.E., 225 S.W .3d 647, 648 (Tex. App.–El Paso 2006, no pet.). A

case i s m o o t wh en the issues prese nted are no longe r live or the parties lack a leg ally cog nizable interest in the outcome. In the Matter of R.M., Jr., 234 S.W .3d 103, 104 (Tex. App.–El Paso 2007,

no pet.) I n both the G.E. and R.M. case s, this Court held that wher e a juvenile’s probation had been terminated befor e submissi on of the appea l, and wher e the appea l conce rned only dispositi on order s, not the adjudication of delinquency itself, the appea ls wer e moot. R.M. Jr., 234 S.W .3d at 105; G.E. 225 S.W .3d at 648. This appea l also conce rns the court’s dispositi on order , not the adjudication of delinquency

. This juvenile pleade d true to a si n gl e al l egation, which is not challeng ed here

. There fore , unless some exception to the mootness doc trine applies, we are constraine d to f ind tha t there is no live controver sy and the a ppeal is moot. There are two exceptions which will allow an appellate court to ad d re s s i ssues that are otherwise moot: (1) capa ble of repe tition y et evading revie w; and (2) collater al conseque nces. Gene ral Land Office of the St ate of Texas v. OXY U.S.A., Inc., 789 S.W .2d 569, 571 (Tex. 1990); R

. M. , Jr., 234 S.W .3d at 104. I n order to invoke the “ca pable of repe tition y et evading re v i ew ” exception, the appellant must show that: (1) the challeng ed action was too short in duration t o be litigated fully befor e the action cea se or expired; and (2) a rea sonabl e ex p ec t at i o n exis ts that the

same c omplaining pa

rty will be subjected to the same ac tion ag ain. R.M. Jr., 234 S.W .3d at 104. We think that the first prong of this test i s m et here

. The child’s dispositi on hear ing was held on Aug ust 27, 2008. The iss ues of indige ncy and ap p ointment of counsel wer e addressed during the pendenc y of the appea l. The court repor ter asked for a single 30-day extension for filing the rec ord; both Appella n t ’s counsel and the State reque sted 45-day extensions for filing their briefs. All extensions wer e gran t ed

. T h u s , i t has been over a y ear since the dispositi on hear ing, although noparty to the appea l can be faulted for undue delay

. We note that the termination of juvenile probation befor e submissi on on appea l is appar ently quite common, as this Court has issued three opinions on very simil ar circ umstances in the rec ent past. In the Interest of D.R.Z., No. 08-07-00306- CV, 2009 WL 1360894, at *2 (Te x . App.–El Paso May 13, 2009 no pet.); R.M. Jr., 234 S.W .3d at 105; G.E. 225 S.W .3d at 648. Neve rtheless, we think the Appellant can n o t m ee t the second prong of this exception, requiring a showing that t h e s am e complaining party will be subjected to the same action ag ain. Even if S.J .C. is subject to another juvenile proce eding befor e his eig hteenth birthday , the fac ts and circ umstances of that proce eding will be differ en t, requiring differ ent proof and finding s. We there fore conclude that the “ca pable of repe tition y et eva ding r eview” exception to mootness does not apply

. The “collatera l conseque nces” exception applies t o sever ely prejudicia l events, the effec ts of which continue to stigmatize helpless or hated individuals long afte r the challeng ed judgme nt has

cea sed to opera te. R.M. Jr., 234 S.W .3d at 104. The Supreme Court ha s applied this e x ception in juvenile case s wher e the adjudication of delinquency is challeng ed, rea soning that such a judgme nt has a numbe r of collater al conseque nces. Carril lo v

. State, 480 S.W .2d 612, 616-17 (Tex. 1972)

. These conseque nces include the rete ntion of the adjudication by the court and juvenile office rs, the

use of such rec ords in assessing future punishments, and the publishing of the juvenile rec ord in the
event the individual is later char g ed with a felony

. Id. The exception g ener ally does not apply wher e only some aspec t of the court’s dispositi on i s ch all eng ed (usually the terms and conditions of probation), as a resolution of dispositi on issues on appea l could not impact the collater al eff ects and leg al conseque nces of being adjudg ed a juvenile delinquent. D.R.Z., 2009 WL 1360894, at *1; R.M. Jr., 234 S.W .3d at 105; In the Matter of L.S., No. 04-07-00751- CV, 2008 WL 2923855, at *2 (Tex.App.–San Antonio J uly 30, 2008, no pet.). The issue befor e us here is neither the adjudication of delinquency , which would clea rly be

cover ed by the collater al conseque nces exception, nor purely an issue of dispositi on, which would clea rly be moot. Rather, we are asked to revie w the juvenile court’s finding that a pare nt contributed
to her son’s delinquency , which we believe presents differe nt questions. We have been unable t o find any case s addre ssing this particula r issue, and there fore we addre ss it as one of first impression. Normally , in order to invoke the collater al conseque nces exception, appellant must show both: (1) a concr ete disadvantag e has resulted from the judgme nt; an d (2 ) t h e d isadvantag e will persist even if the judgme nt is vaca ted and the cause d i s m i s s ed as moot. Marshall v. Housing A u t h o r ity of City of San Antonio, 198 S.W .3d 782, 788-89 (Tex. 2006). Usually , when a case become s moot during appea l, this Court will vacate the underly ing judgme nt. See D.R.Z., 2009 WL 1360894, at *2; G.E., 225 S.W .3d at 648-9; Hanna v. Godwin, 876 S.W .2d 454, 457 (Tex. App.–El Paso 1994, no writ). This preve nts prejudice to the rig hts of the p ar t i es when appellate revie w is prec luded by rea sons other than the voluntary acts of the parties. Marshall, 198 S.W .3d at 788-89. Once the judg ment is vaca ted and the case dismiss ed, collater al conseque nces of the judgme nt a re ordinarily neg ated to the same extent as if the judgme nt wer e reve rsed. Id. at 789. I n juvenile case s, howeve r, we have consistently declined to vacate the entire cause , as aspec ts of the judgme nt rema in that are not moot. See G.E

. , 2 2 5 S.W .3d at 648-49; R.M. Jr., 234 S.W .3d at 105. As we will not dismiss the underly ing cause in this case , we need not e x amine the second prong of the test; r ather

we ne ed only find that a concr ete disadvantag e has re sulted from the judg ment. For the following

rea sons, we conclude that the finding that a pare nt ha s contributed to the delinquency of her minor child satisfies this test. I n its Carril lo opinion, th e Supreme Court reje cted the arg ument that adjudication ofdelinquency should be considere d moot when probation had been discharg ed, noting that “a minor

should have t h e ri gh t t o clea r himself by appea l. This rig ht should not be remove d beca use the
sentenc e g iven is so short that it expires befor e appellate steps can be completed.” Carril lo, 480 S.W .2d at 617. This, even though juvenile proce eding s are subject to “as littl e publicity as possible,” impose no civil liability on the child, and insure that the child shall not be deeme d a criminal nor the adjudication be deeme d a conviction. Id. The adjudication will not disqualify the child from civil service employ

ment. Id. Neve rtheless, there wer e aspec ts of an adjudication that constitute a stigma

or collater al penalty : an adjudication of delinquency could eff ect admission to a profe ssion, the

arme d service s or pri v at e em p l o y ment. Id. Moreove r, other leg al conseque nces acc rue with an adjudication including consideration upon setting punishment for future criminal or juvenile case s, and publication of the rec ord if the juvenile is late r cha rg ed with a f

elony

. Id. I n our opinion, the finding that a pare nt has contributed to a child’s delinquency is more like

one challeng ing an adjudication of delinquency than one challeng ing a term of probation. Reg arding leg al conseque nces, once the juvenile cour t has found that a pe rson, by wilful act or omission, has

co n tributed to, cause d or encour ag ed a delinquent child’s delinquent conduct, the court m ay : (1 ) enjoin all contac t with the child; (2) order a person living in the household to parti ci p ate in counseling ; (3) pay for the child’s trea tment prog ram; pay restitution; and (4) attend a prog ram under the edu ca t i o n code. T E X . F A M . C O D E AN N . § 54.041 (Ve rnon 2008). Her e, the court order ed the mother to attend family counseling , pay numerous fee s, pay restitution an d p ro vide the probation depar tment with the ch i l d ’s s chool rec ords. These are clea rly leg al conseque nces that would not exis t absent the c halleng ed finding

. More importantly , we believe a serious social stigma is attache d to a finding that a pare nt has

co n t ri b uted to her child’s delinquency

. I ndeed, until 1995, contributing to the delinquency ordepende ncy of a child was a stand-alone crime. Ac t s 1 9 9 5 , 7 4 t h L eg ., R.S., ch. 1024, § 26, 1995

Tex. Gen. L aws 5095, 5105, eff

. Sept. 1, 1995; see Axe lrod v. State, 764 S.W .2d 296, 298-99 (Tex. App.–Houston [1st Di s t

. ] 1988), pet. dism’d , 789 S.W .2d 594 (Tex. Crim. App. 1990); Jame s v. State, 635 S.W .2d 653, 654 (Tex. App.–For t Worth 1982, no pet.). Even though the finding here

car ries no criminal sanctions, we believe it is never theless a char g e g oing to the hear t of a pare nt’s societal role

. 2 Finally , we note that the juvenile ref ere e specific ally told the mother that her reme dy , if she did not like his decision, was to appea l to this Court. S he has pr operly broug ht an appe al, and we believe that there are conseque nces attendant to the finding that require us to appl y t h e coll ater al conseque nces exception to mootness here

. We there fore turn to the merits of Appellant’s challeng e, whether there is sufficie nt evidenc e to support the refer ee’ s finding that the mother c ontributed to the delinquenc y

of her son. SUF F ICIENCY OF THE E VIDENCE A t rial court’s finding s are revie wable for lega l and factual sufficiency in the s ame way as

are a jury ’s answe rs to questions in a char g e. In t he Matter of J.K.R., No. 08-03-00406- CV, 2004 WL 805004, at *3 (Tex. App.–El Paso April 15, 2004, no pet.). To deter mine whether the evidenc e is leg ally sufficie nt, we consider only the evidenc e and infere nces that s u p p ort the trial court’s finding s and disreg ard all evidenc e and infere nces to the contra ry . The evidenc e is leg ally sufficie nt if more than a scintilla of evidenc e supports the challeng ed finding

. Id. To deter mine whether the

O t h e r c a s e s w h e r e T e x a s c o u r t s h a v e f o u n d j u d g m e n t s t o b e m o o t , b u t r e v i e w a b l e u n d e r t h e c o l l a t e r a l 2
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. T h e s e c i r c u m s t a n c e s a r e c o m p a r a b l e i n s t i g m a t i z a t i o n t o t h o s e a d d r e s s e d i n t h i s a p p e a l

.evidenc e is fac tually s u ff i ci en t , we consider all the evidence to deter mine whether the challeng ed finding is so ag ainst the g rea t weig ht and preponde ranc e of the evidenc e as to be manifestly unjust. Id. Her e, the Appellant does not specify whether she is making a leg al or fa ctual sufficie ncy challeng e, and she cites authority setting out the standards of revie w for both. We there fore assume that both leg al and f

actua l sufficienc y

challeng es ar e intended. Wit h reg ard to leg al suffic iency , we examine only the evidenc e supporting the finding that the mother contributed to her son’s delinquency

. We find the following : Offic er Rodarte was

conce rned that the mother “wa s a littl e depre ssed,” cry ing about what had happene d, asked why the

case was being opened ag ain, and was conce rned that the State was g oing to br eak up her family

. Only one bedroom of the three bedroom home was in use (appa rently by the juvenile) as the other bedrooms wer e filled with books and clothes. The mother was having a hard time dealing with the dispositi on hear ing beca

use the g raf

fiti incident h ad occur

red months befor e, and this was a new experience to her. She is a substitut e teac her and it was hard for her to acc ept that her own son was in trouble. A new school y ear had beg u n b ef o re t h e case came to court. She ag ree d to see a counselor. No ot her evidence befor e the ref ere e at the t ime of hi s finding even remotely supports the conclusion that this pare nt contributed to her child’s g raf fiti offe nse, except t h e fa ct o f the offe nse itself. We conc lude this does not amount to a scintilla. The State place s some relianc e on the events afte r the ref ere e’s finding , when the Appellant declined to sign the judgme nt a nd the ref ere e threa tened her with ja il. We f irst note that the ref

ere e had alre ady made his finding and events occur ring afte rwa

rd are there fore of doubtful rele vance . The ch i l d wa s n o t prese nt to witness the exchang e betwee n the pare nt and ref ere e, and further there i s nothing i n t h e l aw whi ch would require the m other’s signatur e on rec ommendations or j udg ment. The Family Code simply require s that the court “fur nish a copy of the order to the child.” T E X . F A M .C O D E AN N . § 5 4

. 0 4 (f ) (Ve rnon 2008). Nor is there any thing in Appellant’s conduct that is discerna ble from this rec ord which w ould constitute direct contempt, as arg ued by the S tate. Even h er s t atement to the ref

ere e “[n] ow y ou’re chang ing y our story ” was an appar ent ref ere nce to his

rema rk s “[ w] el l , y ou didn’t do this. You didn’t do it so y ou shouldn’t be upset about it.” I t is understanda

ble that the Appellant would find this statement inconsistent with a finding that she had contributed to her son’s delinquency , and we find nothing contumacious in her questions. Thus, even viewing the post-dispo s it io n e xc hang e in the light most favor able to the challeng ed finding , we cannot conclude that it lends support to a determination of c ontribution to an act of g raf fiti. Finally , the State arg ues that t h e co u rt would have no authority to send Appellant for an evalua tion and counseling unle ss she was found to have contributed t o her son’s delinquency

. This is true, but it does not constitute any evidenc e supp o rt ive of the finding

. Although the ref ere e’s motives may have been g ood, never theless his finding s must be supported by sufficie nt evidenc e, and that simply does not exis t here

. The mother’s issue on appea l is sustained. Be cause we find the evidenc e leg ally insufficient to support the finding , we need not rea ch the issue of fac tual sufficie ncy . CONCLUSION For the rea sons set out above, we find that the issue befor e us is revie wable under the collater al

co n s eq u en ces exception to the mootness doctrine. We further find that the evidenc e was leg all y insufficient to support the t rial court’s finding that the j uvenile’s m o t her by willful act or omission,

c o n tr ibuted to, cause d, or encour ag ed the child’s delinquent conduct. We there fore reve rse that p o r ti o n of the trial court’s judgme nt of probation, and order that finding vacated. As modified, the rema inder of the judg ment is affirme d. SUSAN L ARSEN, J ustice (f ormer) J anuar y 6, 2010Be fore McClure, J., R ivera , J ., and L arse n, J

.

L arse n, J . (sitting by

assig nment)