Honsaker, Matter of

• Decision Date: 15 July 1976
• Docket Number: No. 18916,18916
• Citation: 539 S.W.2d 198
• Parties: In the Matter of Paul Ray HONSAKER, II.
• Court: Texas Court of Appeals

Page 198

539 S.W.2d 198

In the Matter of Paul Ray HONSAKER, II.

No. 18916.

Court of Civil Appeals of Texas Dallas.

July 15, 1976.

Rehearing Denied Aug. 12, 1976.

Kelly D. McGehee, Dallas, for appellant.

Henry Wade, Dist. Atty., Dallas County, Maridell Templeton, Asst. Dist. Atty., Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

Paul Ray Honsaker, II, appeals from an order of the juvenile court waiving its jurisdiction and ordering a transfer to a criminal district court pursuant to authority of Tex. Family Code Ann. § 54.02 (Vernon 1975).* We affirm.

On September 9, 1975, the District Attorney of Dallas County filed a petition in the juvenile court alleging that Paul Ray Honsaker, II, was a child who had committed robbery in violation of Tex.Penal Code Ann. § 29.03 (Vernon 1974) and that the juvenile court should waive its jurisdiction and transfer the case to a criminal district court for criminal proceedings. Subsequently, an amended petition was filed alleging that the child had committed the additional offense of escape under Tex.Penal Code Ann. § 38.07 (Vernon 1974). Honsaker, the child named in the petition, was served with summons pursuant to § 53.06. Honsaker's natural mother appeared at the hearing held by the juvenile court and testified that she had previously signed papers authorizing his adoption. However, no documentation of actual adoption was produced. The court appointed Honsaker's natural mother as the guardian ad litem to represent him at the hearing and also appointed an attorney ad litem who actively participated in his representation at the hearing and on this appeal. Upon being advised that the child's natural father lived outside the state, the court recessed the hearing for a period of two weeks to give the district attorney an opportunity to 'take care of their service on appellant's natural father.' On December 8, 1975, the hearing was reconvened and after learning that the district attorney was unable to prove service on the out-of-state father, the court offered to grant a new hearing if Honsaker's counsel objected to the lack of notice given to the father. At that time Honsaker's counsel stated that he would proceed with the case as formulated.

Two police officers testified concerning the results of their investigation of the criminal acts charged against Honsaker. Officer J. R. Landers stated that he interviewed the person who filed a complaint of robbery and that when he showed the complainant photographs of several youths, the complainant selected the photograph of Honsaker as the perpetrator of the robbery. Officer B. J. Adamcik testified that during his investigation of the armed robbery, he showed photographs of several youths to the complainant who identified Honsaker as the one who committed the offense.

Honsaker's probation officer testified about the results of her investigation and recommended that the juvenile court waive jurisdiction and transfer the case to a criminal district court. The court also received a written report of the psychological evaluation of Honsaker.

At the conclusion of this hearing the court entered an order as follows:

The court finds that said act or acts would be felonies under the penal laws of the State of Texas if committed by an adult. The court finds that the alleged offenses are against the person. The court finds that the alleged offense was committed in a premeditated and aggressive manner.

The court finds that there is evidence upon which the grand jury may be expected to return an indictment regardless of the youthful age of the said Paul Ray Honsaker, II.

The court finds that the child is of sufficient sophistication and maturity to be tried as an adult. The court specifically finds that the child is of sufficient sophistication and maturity to aid an attorney in his defense. The court finds that because of the record and previous history of the child and because of the extreme and severe nature of the alleged crime, the prospect of adequate protection for the public and the likelihood of reasonable rehabilitation of the child by the use of the procedures, services and facilities currently available to the juvenile court are in serious doubt.

The court after diagnostic study, social evaluation and full investigation, finds that it is contrary to the best interests of said child and the public to retain jurisdiction.

The court finds that because of the seriousness of the alleged offense and the background of the child, the welfare of the community requires criminal proceedings.

Honsaker perfected an appeal from this order and contends that it should be set aside and vacated because (1) the juvenile court lacked jurisdiction to conduct a hearing because his natural father or adoptive mother were not served with a summons in accordance with § 53.06; (2) the court's order is not supported with competent evidence; and (3) the order does not comply with the terms of § 54.02(h).

As a basis for his first contention, Honsaker argues that the failure of the State to serve either the natural or adoptive parents with legal notice of the time, place and purpose of the hearing was fundamental error, and any evidence heard by the court until such service of notice should not be considered. He argues that parental rights come within the protection of the due process clause of the federal and state constitutions. Texas courts have long recognized that in proceedings where child custody is to be adjudicated and parental rights affected, parents must be given notice of the proceedings and must be allowed a full hearing to protect their rights. DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 691 (1944). In Pettit v. Engelking, 260 S.W.2d 613, 616 (Tex.Civ.App.--San Antonio 1953, writ ref'd n.r.e.), Justices Norvell and Pope, while reviewing proceedings in the trial court which declared an infant to be a neglected and dependent child and which resulted in termination of the parental rights, reaffirmed the principle of DeWitt v. Brooks, supra. In both of these cases, parental rights were affected by the adjudication of the court. We cannot agree with appellant that these cases are controlling in a discretionary transfer proceeding. The procedural safeguards incorporated into § 54.02 are required to protect the rights of the child as a matter of federal constitutional law enunciated by the United States Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). This section specifies that notice shall be given as provided by § 53.06 which requires the juvenile court to issue summons to the child; child's parents; child's guardian or custodian; a child's guardian ad litem; and any other person who appears to be a proper, necessary party. The commentary to § 51.11 explains that a basic principle of the Code is that every child who appears before the juvenile court must have the assistance of some friendly, competent adult who can supply the child with support and guidance. Usually, one of the child's parents or in some situations a substitute parent, will fill this need. However, if a parent or guardian is unavailable, the Code requires the appointment of a guardian ad litem. Texas Family Code Symposium, 5 Tex.Tech L.Rev. 529 (1974). Since Honsaker was served with citation, his natural mother was appointed his guardian ad litem, and he was effectively represented by competent counsel, we hold that his due process rights were adequately protected. The natural father and adoptive mother are not parties to the lawsuit, and no contention is advanced that they have parental rights which might be affected by the hearing.

Honsaker next contends that the court's findings are not supported by competent evidence. We cannot agree. The main thrust of his argument is that all of the evidence presented at the hearing was hearsay. He contends that the testimonies of police officers were based upon statements of others made to them during the process of investigation and not based upon the officers' own observations.

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