In the Matter of W. D. M., a Juvenile--Appeal from 327th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

) No. 08-01-00332-CV

)

) Appeal from

IN THE MATTER OF W.D.M., A Juvenile, )

) 327th District Court

)

) of El Paso County, Texas

)

) (TC# 01,00493)

MEMORANDUM OPINION

The State filed a petition alleging that W.D.M., a juvenile, had engaged in delinquent conduct by committing the offense of attempted murder and aggravated assault. The juvenile waived a trial and admitted to aggravated assault. A jury trial on disposition was held and the jury committed her to the Texas Youth Commission for 5 years and 7 months. On appeal, Appellant asserts two issue. We affirm.

The Appellant was a twelve-year-old female who stabbed her mother with a kitchen knife on March 31, 2001. She was arrested on April 1, 2001, and the initial detention hearing was held on April 2, 2001. The Appellant=s mother was then hospitalized, and the trial court appointed the Appellant=s aunt as guardian ad litem. At two subsequent pretrial hearings, the guardian ad litem was present with the juvenile. At all subsequent hearings, the juvenile appeared with her mother.

In Issue One, Appellant contends that the trial court never obtained jurisdiction to adjudicate her under the determinate sentencing provisions of the Texas Family Code because she was never served with a summons on the determinate petition. See Tex.Fam.Code Ann. ' 53.06(a)(Vernon 2002). She complains that nothing in the record, apart from the trial court=s recitation in the judgment, indicates that the State ever personally served Appellant with a summons for the Amended Petition. As the Appellee=s brief notes, however, a copy of the summons and return establish that the Appellant was served the Amended Petition on May 8, 2001. The original clerk=s record inadvertently omitted the summons and return, but they were included in a supplemental clerk=s record filed March 14, 2002. The first issue is overruled.

In Issue Two, we understand the Appellant to argue that because the trial court initially appointed a guardian ad litem that it was then necessary for that guardian to receive all subsequent notices and be present at all subsequent hearings. The record reflects that the guardian, Appellant=s aunt, was appointed on April 2, 2001, and she was present at the first two detention hearings. The Appellant=s mother, a single parent, was then in the hospital, but at all subsequent hearings held after April 25, 2001. The Appellant=s mother was present with her daughter along with the Appellant=s lawyer.

A guardian ad litem displaces the minor=s next friend (typically the minor=s parents), becoming the minor=s personal representative. Borden, Inc. v. Martinez, 19 S.W.3d 469, 476 (Tex.App.- San Antonio 2000, no pet.). Absent anything in the record to suggest that the Appellant=s mother was incapable or unwilling to make decisions in the best interest of the Appellant, her presence as Appellant=s parent displaces any need for a guardian ad litem. Id.; see also, In the Matter of D.K.E., 644 S.W.2d 815, 818 (Tex.App.--Corpus Christi 1982, writ ref=d n.r.e.). We also noted that Appellant had a court appointed attorney at all stages of the proceedings. Issue Two is overruled.

Having overruled Appellant=s issues on appeal, we affirm the judgment of the court below.

March 6, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.