STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2022 CA 1013
THE CONTINUING TUTORSHIP OF TREYVIYON LENARD HARRIS
Judgment Rendered: FEB 2 4 2023
Appealed from the 19" Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. P111952
The Honorable Donald R.. Johnson, Judge Presiding
Todd E. Gaudin Counsel for Plaintiff/Appellee, Baton Rouge, LA Janice W. Harris
John N. Samaha Counsel for Appellant/ Defendant, Baton Rouge, LA Patrice R. Pena
BEFORE: GUIDRY, C. J., WOLFE, AND MILLER, JJ. MILLER, J.
This matter is before us on appeal by Patrice R. Pena, the mother of
Treyviyon Lenard Harris, from a judgment of the district court appointing Janice
Lavon Harris ( a.k.a Janice Wilson Harris or Janice W. Harris) as the continuing
tutrix of Treyviyon. For the reasons that follow, we vacate and remand.
FACTS AND PROCEDURAL HISTORY
Treyviyon was morn on July 26, 2004. On July 22, 2022, four days prior to
his eighteenth birthday, his maternal grandmother, Ms. Harris, filed a petition to
approve continuing tutorship of Treyviyon based on his diminished " mental
acuity" and be appointed as his continuing tutrix, pursuant to La. C. C. art. 354.
Ms. Harris avers that a continuing tutor is necessary because Treyviyon' s
intellectual disability renders him vulnerable to trickery, manipulation, and injury,
such that he requires an adult to " look out" for his best interests and reasonably
oversee his affairs and personal safety. Ms. Harris contends that Treyviyon' s
parents are " not readily available." She alleges that his mother is alive and
residing in Moore, Oklahoma, but does not have physical custody of Treyviyon
and has not been the primary caretaker of Treyviyon since at least 2019, and that
his father is deceased.' Ms. Harris avers that Treyviyon has lived with her
exclusively for most of his life, and consistently since 2019, during which time she
has served as his sole caregiver, satisfying all of his needs. Ms. Harris sought the
appointment of Treyviyon' s uncle, Allen Wilson, Jr., as his continuing undertutor.
In support of her petition, Ms. Harris attached Treyviyon' s birth certificate,'
a medical chart note from Treyviyon' s mental health provider, Treyviyon' s
While Treyviyon' s birth certificate lists " Patrice Rhocher Harris" as his mother, his mother is erroneously identified in the petition as " Allen Wilson, Jr."
Although the birth certificate does not list the name of Treyviyon' s father, Ms. Harris avers that his father is Robert Lee Truvillion, Jr., who died on February 2, 2009, in Baton Rouge. In an attempt to verify his death, counsel for Ms. Harris annexed a signed statement to her petition, noting " Death certificate unavailable but obituary appears online."
2 Individual Education Program ( IEP) from the East Baton Rouge Parish School
System, the Coroner' s Concurrence with the allegations of his mental status, an
initial detailed descriptive list of Treyviyon' s assets, an oath of tutrix, and an oath
of undertutor. On July 22, 2022, the district court signed a judgment of continuing
tutorship appointing Ms. Harris as Treyviyon' s continuing tutrix and Mr. Wilson as
his continuing undertutor.
Treyviyon' s mother, Ms. Pena, filed the instant appeal. On appeal, Ms. Pena
contends that she received no notice, formal or informal, of these proceedings; that
the district court erred in ordering continued tutorship and appointing Ms. Harris as
Treyviyon' s continuing tutrix where Ms. Harris had no right of action to seek
continuing tutorship without legal custody of Treyviyon; and, alternatively, that in
the event Ms. Harris possessed a right of action, the proof submitted in support of
her petition was insufficient.'
DISCUSSION
Persons, including certain children, with intellectual disabilities or mental
deficiencies may be placed under continuing or permanent tutorship without
formal or complete interdiction in accordance with the following rules and
procedures stated in the Louisiana Code of Civil Procedure. La. C. C. art. 354.
A petition for continuing or permanent tutorship of an intellectually disabled
person may be filed: ( 1) when the intellectually disabled person is above the age
of fifteen; ( 2) when the intellectually disabled person possesses less than two-thirds
of the intellectual functioning of a person of the same age with average intellectual
functioning, evidenced by standard testing procedures administered by competent
3T the extent that Ms. Pena alleges in her brief that she was granted custody of Treyviyon in a proceeding entitled, " State of Louisiana In The Interest of Treyviyon Lenard Harris, bearing docket number 27, 305, 14"' Judicial District Court, Parish of Calcasieu, State of Louisiana," we note that an appellate court must render its judgment upon the record on appeal, La. C. C. P. art. 2164, and the appellate briefs of the parties form no part of the record on appeal. Augustus v. St. Mary Parish School Board, 95- 2498 ( La. App. I" Cir. 6128196), 676 So. 2d 1144, 1156. Thus, this court has no authority to consider on appeal facts referred to in appellate briefs or in exhibits attached thereto, if those facts are not contained in the record on appeal. In re J. E.T., 2016- 0384 ( La. App. I" Cir. 10131116), 211 So. 3d 575, 580.
3 persons or other relevant evidence acceptable to the court; ( 3) by the parents of
such person, or the person entitled to custody or tutorship if one or both parents are
dead, incapacitated, or absent persons, or if the parents are judicially separated or
divorced or have never been married to each other; and ( 4) with the written
concurrence of the coroner of the parish of the intellectually disabled person' s
domicile. La. C. C. art. 355. The continuing or permanent tutorship shall not
automatically end at any age but shall continue until revoked by the court of
domicile. La. C. C. art. 355.
When the person to be placed under the continuing tutorship is above the age
of fifteen, and under the age of majority, the proceeding shall be conducted
according to the procedural rules established for ordinary tutorships. La. C. C. art.
356( 1). However, when the person to be placed under the continuing tutorship is
above the age of majority, the proceeding shall be conducted according to the
procedural rules established for interdictions. La. C, C. art. 356( 2).
At the time the petition for continuing tutorship was filed herein, Treyviyon
was under the age of majority. Thus, the procedural rules established for ordinary
tutorships applied. See La. C. C. art. 356( 1). Louisiana Code of Civil Procedure
article 4065 provides that in ordinary tutorship proceedings, when a petition for
appointment as legal or dative tutor is filed, the applicant shall annex an affidavit
listing to the best of his knowledge the minor' s ascendants and collaterals by blood
within the third degree and the surviving spouse of the minor' s mother or father
dying last who reside in the state. A copy of the petition for appointment shall be
mailed by registered or certified mail to each person listed in the affidavit and
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2022 CA 1013
THE CONTINUING TUTORSHIP OF TREYVIYON LENARD HARRIS
Judgment Rendered: FEB 2 4 2023
Appealed from the 19" Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. P111952
The Honorable Donald R.. Johnson, Judge Presiding
Todd E. Gaudin Counsel for Plaintiff/Appellee, Baton Rouge, LA Janice W. Harris
John N. Samaha Counsel for Appellant/ Defendant, Baton Rouge, LA Patrice R. Pena
BEFORE: GUIDRY, C. J., WOLFE, AND MILLER, JJ. MILLER, J.
This matter is before us on appeal by Patrice R. Pena, the mother of
Treyviyon Lenard Harris, from a judgment of the district court appointing Janice
Lavon Harris ( a.k.a Janice Wilson Harris or Janice W. Harris) as the continuing
tutrix of Treyviyon. For the reasons that follow, we vacate and remand.
FACTS AND PROCEDURAL HISTORY
Treyviyon was morn on July 26, 2004. On July 22, 2022, four days prior to
his eighteenth birthday, his maternal grandmother, Ms. Harris, filed a petition to
approve continuing tutorship of Treyviyon based on his diminished " mental
acuity" and be appointed as his continuing tutrix, pursuant to La. C. C. art. 354.
Ms. Harris avers that a continuing tutor is necessary because Treyviyon' s
intellectual disability renders him vulnerable to trickery, manipulation, and injury,
such that he requires an adult to " look out" for his best interests and reasonably
oversee his affairs and personal safety. Ms. Harris contends that Treyviyon' s
parents are " not readily available." She alleges that his mother is alive and
residing in Moore, Oklahoma, but does not have physical custody of Treyviyon
and has not been the primary caretaker of Treyviyon since at least 2019, and that
his father is deceased.' Ms. Harris avers that Treyviyon has lived with her
exclusively for most of his life, and consistently since 2019, during which time she
has served as his sole caregiver, satisfying all of his needs. Ms. Harris sought the
appointment of Treyviyon' s uncle, Allen Wilson, Jr., as his continuing undertutor.
In support of her petition, Ms. Harris attached Treyviyon' s birth certificate,'
a medical chart note from Treyviyon' s mental health provider, Treyviyon' s
While Treyviyon' s birth certificate lists " Patrice Rhocher Harris" as his mother, his mother is erroneously identified in the petition as " Allen Wilson, Jr."
Although the birth certificate does not list the name of Treyviyon' s father, Ms. Harris avers that his father is Robert Lee Truvillion, Jr., who died on February 2, 2009, in Baton Rouge. In an attempt to verify his death, counsel for Ms. Harris annexed a signed statement to her petition, noting " Death certificate unavailable but obituary appears online."
2 Individual Education Program ( IEP) from the East Baton Rouge Parish School
System, the Coroner' s Concurrence with the allegations of his mental status, an
initial detailed descriptive list of Treyviyon' s assets, an oath of tutrix, and an oath
of undertutor. On July 22, 2022, the district court signed a judgment of continuing
tutorship appointing Ms. Harris as Treyviyon' s continuing tutrix and Mr. Wilson as
his continuing undertutor.
Treyviyon' s mother, Ms. Pena, filed the instant appeal. On appeal, Ms. Pena
contends that she received no notice, formal or informal, of these proceedings; that
the district court erred in ordering continued tutorship and appointing Ms. Harris as
Treyviyon' s continuing tutrix where Ms. Harris had no right of action to seek
continuing tutorship without legal custody of Treyviyon; and, alternatively, that in
the event Ms. Harris possessed a right of action, the proof submitted in support of
her petition was insufficient.'
DISCUSSION
Persons, including certain children, with intellectual disabilities or mental
deficiencies may be placed under continuing or permanent tutorship without
formal or complete interdiction in accordance with the following rules and
procedures stated in the Louisiana Code of Civil Procedure. La. C. C. art. 354.
A petition for continuing or permanent tutorship of an intellectually disabled
person may be filed: ( 1) when the intellectually disabled person is above the age
of fifteen; ( 2) when the intellectually disabled person possesses less than two-thirds
of the intellectual functioning of a person of the same age with average intellectual
functioning, evidenced by standard testing procedures administered by competent
3T the extent that Ms. Pena alleges in her brief that she was granted custody of Treyviyon in a proceeding entitled, " State of Louisiana In The Interest of Treyviyon Lenard Harris, bearing docket number 27, 305, 14"' Judicial District Court, Parish of Calcasieu, State of Louisiana," we note that an appellate court must render its judgment upon the record on appeal, La. C. C. P. art. 2164, and the appellate briefs of the parties form no part of the record on appeal. Augustus v. St. Mary Parish School Board, 95- 2498 ( La. App. I" Cir. 6128196), 676 So. 2d 1144, 1156. Thus, this court has no authority to consider on appeal facts referred to in appellate briefs or in exhibits attached thereto, if those facts are not contained in the record on appeal. In re J. E.T., 2016- 0384 ( La. App. I" Cir. 10131116), 211 So. 3d 575, 580.
3 persons or other relevant evidence acceptable to the court; ( 3) by the parents of
such person, or the person entitled to custody or tutorship if one or both parents are
dead, incapacitated, or absent persons, or if the parents are judicially separated or
divorced or have never been married to each other; and ( 4) with the written
concurrence of the coroner of the parish of the intellectually disabled person' s
domicile. La. C. C. art. 355. The continuing or permanent tutorship shall not
automatically end at any age but shall continue until revoked by the court of
domicile. La. C. C. art. 355.
When the person to be placed under the continuing tutorship is above the age
of fifteen, and under the age of majority, the proceeding shall be conducted
according to the procedural rules established for ordinary tutorships. La. C. C. art.
356( 1). However, when the person to be placed under the continuing tutorship is
above the age of majority, the proceeding shall be conducted according to the
procedural rules established for interdictions. La. C, C. art. 356( 2).
At the time the petition for continuing tutorship was filed herein, Treyviyon
was under the age of majority. Thus, the procedural rules established for ordinary
tutorships applied. See La. C. C. art. 356( 1). Louisiana Code of Civil Procedure
article 4065 provides that in ordinary tutorship proceedings, when a petition for
appointment as legal or dative tutor is filed, the applicant shall annex an affidavit
listing to the best of his knowledge the minor' s ascendants and collaterals by blood
within the third degree and the surviving spouse of the minor' s mother or father
dying last who reside in the state. A copy of the petition for appointment shall be
mailed by registered or certified mail to each person listed in the affidavit and
notice of the application shall be published once in the parish where the petition
was filed, in the manner provided by law, La. C. C. P. art. 4065. The word " shall"
is mandatory. La. C. C. P. art. 5053. Thus, the requirements of La. C. C. P. art. 4065
are mandatory and may not be waived. Matter of Custody of Booty, 95- 0828 ( La.
4 App, I" Cir. 1119195), 665 So. 2d 444, 448 n. 2 ( recognizing that La. C. C. P. art.
4065 requires notice to selected relatives of the minor child of the filing of the
petition for tutorship and that a lack of notice could invalidate the appointment of
the provisional tutor).
Accordingly, because Treyviyon was not yet eighteen at the time the petition
was filed, it was necessary for Ms. Harris to follow the procedural rules for
ordinary tutorships, which required her to annex an affidavit to her petition listing
Treyviyon' s ascendants and collaterals by blood within the third degree and the
surviving spouse of the minor' s mother or father dying last who reside in the state.
Thereafter, she was required to send, by registered or certified mail, a copy of the
petition for appointment to each person listed in the affidavit.
On the record before us, it does not appear that the procedural rules for
notice were complied with. There is no evidence that an affidavit was prepared
and filed with the petition for appointment nor is there evidence that the petition
was sent by registered or certified mail to Ms. Pena in accordance with La. C. C. P.
art. 4065. Because Ms. Pena was not provided with notice of the continuing
tutorship proceedings as required, we find the district court' s judgment appointing
Ms. Harris as Treyviyon' s continuing tutrix and Mr. Wilson as Treyviyon' s
undertutor is an absolute nullity and must be vacated.' See In re Tutorship of
Cardenas, 2009- 2020 ( La. App. 1" Cir. 6111110), 38 So. 3d 1284, 1286- 1287; In re
Tutorship of Woodard, 216 So. 2d 132, 134 ( La. App. 2" I Cir. 1968); and In re
Robertson, 283 So. 2d 834, 836 ( La. App. 2° a Cir. 1973).
4When an appellate court notices an absolute nullity, the court is empowered to vacate or correct the judgment on its own motion. See La. C. C. P. arts. 2002( A)(2), 1201( A), and 2164; Thurman v. Aguilar, 2021- 1514 ( La. App. I" Cir. 6/ 22122), 343 So. 3d 784, 798, writ denied, 2022- 01110 ( La. 11/ 1! 22), 349 So. 3d 7; New Orleans and Baton Rouge Steamship Pilots Association v. Wartenbur , 2020- 0193 ( La. App. 1St Cir, 11/ 12/ 20), 316 So. 3d 39, 42.
FJ Considering our finding herein that Ms. Harris failed to comply with the
mandatory requirements of La. C. C. P. art. 4065, we pretermit discussion of Ms.
Pena' s assignments of error.
CONCLUSION
For the above and foregoing reasons, the July 22, 2022 judgment of the
district court is vacated and this matter is remanded to the district court for further
proceedings. All costs of this appeal are assessed to the plaintiff/appellee, Janice
Lavon Harris.
VACATED AND REMANDED.