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Old 11-16-2008, 05:08 PM   #1 (permalink)
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Amended and supplemented petition

Is it legally required that an amended and/or supplemented petition stand on its own without reference to the original petition?

Can the plaintiff switch back and forth between his original petition and his amended petition especially if the original and amended petition contain different causes of action.
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Old 11-17-2008, 04:32 AM   #2 (permalink)
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The latest amended petition is the only one you should view as "the case". It won't stop them from re-amending, perhaps to add back things they left out, but chances do not favor that happening unless the plaintiff has no cause of action content left in the case.

Last edited by boykinmama; 11-17-2008 at 04:38 AM.
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Old 11-17-2008, 08:19 AM   #3 (permalink)
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Thanks so much for your reply. i see that you are a senior member.

i put my post under personal injury becaue that was the closest subject that I could find and my case is civil. I was fighting a CPS case pro se in Texas. I have done remarkably well. Probably just a lot of research, tenacity, dumb luck, and the fact that I was totally innocent helped somewhat. I am an expert witness so I had a little experience with the law. I have done tremendous research and now know way more about this area of the law than I ever really wanted to know.

The state filed an original petition for neglect which I answered as denied. The state then amended their petition to sexual abuse which I, of course, denied [civil court]. The amended and supplemented petition no longer even mentions neglect, only sexual abuse.

At the adjudication I showed that the state's witnesses were ALL perjuring themselves. The judge then ruled that there was not sufficient evidence to support a charge of sexual abuse but then she ruled that I had neglected my child to save the state from a law suit. The state never even presented a case for neglect at the adjudication.

I finally got my child back. I now want to vacate the adjudication on the grounds that the judge had no jurisdiction to rule that I had neglected my child since the plaintiff had abandoned the neglect cause of action.

Any ideas how I can support this argument? Does anyone know of a US Supreme court case or how I would even start to research this?
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Old 11-17-2008, 10:09 AM   #4 (permalink)
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Quote:
Originally Posted by Abogado View Post
Thanks so much for your reply. i see that you are a senior member.

i put my post under personal injury becaue that was the closest subject that I could find and my case is civil. I was fighting a CPS case pro se in Texas. I have done remarkably well. Probably just a lot of research, tenacity, dumb luck, and the fact that I was totally innocent helped somewhat. I am an expert witness so I had a little experience with the law. I have done tremendous research and now know way more about this area of the law than I ever really wanted to know.

The state filed an original petition for neglect which I answered as denied. The state then amended their petition to sexual abuse which I, of course, denied [civil court]. The amended and supplemented petition no longer even mentions neglect, only sexual abuse.

At the adjudication I showed that the state's witnesses were ALL perjuring themselves. The judge then ruled that there was not sufficient evidence to support a charge of sexual abuse but then she ruled that I had neglected my child to save the state from a law suit. The state never even presented a case for neglect at the adjudication.

I finally got my child back. I now want to vacate the adjudication on the grounds that the judge had no jurisdiction to rule that I had neglected my child since the plaintiff had abandoned the neglect cause of action.

Any ideas how I can support this argument? Does anyone know of a US Supreme court case or how I would even start to research this?
If you want to vacate the ruling, the case needs to be appealed within the amount of time allotted by the state in which you reside.

Also, and this is just speculation since I have not viewed the case against you, but it is possible that the ruling was, in fact, legitimate. Let me explain why. Lets presume I am charged with a capital crime. The case goes to trial and the judge finds I am not guilty of a capital crime, but rather, the lesser crime of manslaughter. I cannot argue that since the case against me wasn't manslaughter, but murder1, therefore the ruling should be vacated. Understand?

A finding of not guilty of sexual abuse does not negate a finding of neglect. Now, if she had found you guilty of, say, FORGERY (obviously, ridiculous, but chosen for the sake of example), clearly that was not a part of the case against you. Also, read the paperwork carefully. Many times while outlining different causes of action, the first point under each separate cause of action will read something like : "The Plaintiff realleges the previous paragraphs as if set out verbatim." This means that without repetition, some former assertions/claims may be carried over without their being stated specifically so. So, even if the complaint is amended, it doesn't necessarily mean that the former cause of action was sumarily abandoned.

However, you need to be very careful. If you have regained custody of your child, to attempt to vacate the ruling now could very well return you to your previous position---attempting to regain custody of your son again. And, this time, they may be better prepared and MAY be able to prove beyond a reasonable doubt that you are, in fact, guilty.

While I understand your displeasure at not having, apparently, complete vindication, what you are risking in attempting to do so is at grave cost.

Choose wisely.

Also, note--the "senior member" designation is not a reflection of legal training, acumen, or even accuracy. It is, simply, an indication of the NUMBER of postings made in this forum, not the quality of the same.
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Old 11-17-2008, 11:19 AM   #5 (permalink)
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The only time you see a "previous paragraphs" kind of statement is when there are multiple causes of action and the "previous paragraphs" are actually included in a previous cause of action within the same document. You cannot rescind or remake a complaint and then use its previous contents by such a reference. An amended complaint is always numbered... eg "THIRD AMENDED VERIFIED COMPLAINT". While there can be any number of causes of action in a single complaint, it is illogical to refer to another complaint version without actually copying it into the current complaint. The courts do not deal in subterfuge.

However, there are many ways that a judge, especially in CPS complaints, can take appropriate action for the situation as adjudicated. Perhaps the judge recognized that the prosecutor in your case was having a hard time and simply went to the crux of the matter and made her judgement. Bad things happen to good people, but sometimes bad things happen when they didn't have to. That is when the judge needs to remind parents that they have a duty.

Listen to Grace on the possibility of getting back in the same place. If you win an appeal, they could reinstitute charges against you.

Better that you should find a new home for the next ten to fifteen years... far from your current court system. Just remember your duty.
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Old 11-17-2008, 11:41 AM   #6 (permalink)
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Basic. AMEND means to CHANGE. Unless specified, the other causes of action previously still stand. Amend can add to, take away, etc. But those areas of the original complaint it does not address are presumed to be unchanged.

Also, I personally have amended documents (separate documents) and incorporated points such and such from a previous document without including them. So, from my personal experience, I have referred to OTHER documents and not just the same document. Example: "Amended to say/add/delete such and such, however the balance of our complaint as outlined in document numbered such and stands as if restated here verbatim." While it can refer to the same document it can and does refer to previous documents if so stipulated.

To the original poster, if you wish to see actual examples of this, please let me know and I can provide you with actual cases that, while different from yours, allowed the references to previous statements from OTHER documents. These are documents from my own personal court cases in the past.

Another example of this is a summons and complaint wherein the defendant is required to respond, point by point to the plaintiffs allegations. This :"back and forth" process continues, each side filing a response with the court and they do, most certainly refer back to previous copies of documents regarding the same case.
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Last edited by GentleGrace; 11-17-2008 at 11:44 AM.
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Old 11-17-2008, 01:18 PM   #7 (permalink)
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Another document perhaps, but not a previous version of the same complaint. The idea is to make the document simple for the judge and/or the jury to navigate. Of course if it is just a personal document, you can do whatever you want... but going to court with a document that continually refers to version 1, 2, or 3 in the 4th amended.etc is risking misinterpretation or misinformation. This particular example is one exactly as she stated, where there were multiple amended versions of a complaint. With today's word processors, there is simply no need to risk content to save keystrokes.

Do you still use a typewriter? Clearly not, so why assume that everyone would still use circular references to prior versions? It is just not done any more.
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Old 11-17-2008, 01:47 PM   #8 (permalink)
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Boykinmama they take parent's children with out a criminal trial and without the beyond a reasonable doubt standard. They actually sue you for your child with a "preponderance of the evidence". You can actually lose the most valuable part of your life without due process or a jury trial. They take your child, you don't see or talk to each other for months, and then your child is taken away with false allegations by a social worker without the qualifications to clean toilets at WalMart.

Boykinmama your analysis make more since it goes to due process [notiice and right to be heard] and maybe because it is what I want to hear but it does make logical sense.

I am fully aware of the repercusions but they are minimal. I have already "served my time" with parenting classes and anger management and all the other ilk in the interest of having my child returned promptly. She was drugged, sexually abused, and received corporal punishment for begging for daddy and the rest of it I won't go into.

I really don't need to be reminded of some nefarious "duty" by some judge or anyone else. I don't have a duty, I have what the US Supreme Court calls "natural affection". I have no duty to this government, judge, and certainly not to some social services organization. My daughter and I had a beautiful life building our new home but someone [not family or relative] wanted my beautiful and talented daughter.

This will not be an appeal. This is a vacate which could also result in a retrial. I make the decisions and the choices and this is what I choose to do and I have done alright so far dispite this holocaust taking place in the US and the rest of the Western world. You cannot understand until it happens to you. I certainly did not think that kidnapping was legal in the US.

The family court systems are the same all over the US. They want those kids or a ransom [attorney fees] and do not mind destroying biological parents to get them. You may assume because someone has been accused they must be guilty of something but this is rarely the case.

My parenting instructor told me that he has never seen social services help even one child. Every honorable social worker [very few] is disgusted with the system. They brought a five year old into court in chains. They make the fathers pay child support even after they have lost all paental rights.
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Old 11-17-2008, 02:24 PM   #9 (permalink)
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Originally Posted by boykinmama View Post
Another document perhaps, but not a previous version of the same complaint. The idea is to make the document simple for the judge and/or the jury to navigate. Of course if it is just a personal document, you can do whatever you want... but going to court with a document that continually refers to version 1, 2, or 3 in the 4th amended.etc is risking misinterpretation or misinformation. This particular example is one exactly as she stated, where there were multiple amended versions of a complaint. With today's word processors, there is simply no need to risk content to save keystrokes.

Do you still use a typewriter? Clearly not, so why assume that everyone would still use circular references to prior versions? It is just not done any more.
I am not going to ask what in the world a TYPEWRITER has to do with referencing previously prepared documents.

As someone who has actually argued numerous cases in just this fashion, you may say that YOU haven't done it, but please refrain from commenting on MY actual physical REAL LIFE court cases I have personally prepared, argued and won.

Let me provide a basic illustration, The Constitution. It has been amended. Repeatedly. However, it has not negated the Constitution NOR has it rendered irrelevant those parts NOT amended. NOR does it QUOTE the entire document in its entirety in each amended section. It isn't done anymore? Check it out. Its called the CONSTITUTION.

As someone who has actually ARGUED a civil suit , prepared the documents for the same, and won sizable judgments, rest assured it HAPPENS. Don't take my word for it--take a class in Constitutional law and learn about amendments, and how documents change and reference one another. If you have ever read a Supreme Court ruling, simplicity is NOT their goal. Accuracy and Protocol is.

My second response to a summons and complaint literally read in the opening paragraphs, "The previous statements contained in our first response are applied here, as though they are restated in their entirety."
Give me time to dig them out of storage and I will be more than happy to scan them and upload them for your viewing pleasure.

The perpetuation of misinformation as FACT by those with no legal training, who have never argued a case in any courtroom, results in the greatest tragedy of all---opinion (not fact) that could adversely affect the life of another person to their detriment.

To the original poster, take everything you have read here --including my own postings--with a realization that not everyone here has attended law school, or has a law degree, and common sense is not a prerequisite for "answering" questions in this forum.

I understand your frustration with an inherently flawed system and I admire your courage in determination in what you have already accomplished.

My best.
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Old 11-17-2008, 02:35 PM   #10 (permalink)
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Your frustration is palpable. It seems possible that has been your problem all along. The one thing I find common in cases where the "bad guys" at the child protective service prosecute a case where there are no reasons to actually find the defendant guilty of something is that the defendant doesn't show the appropriate deference for the government workers... and that definition depends on the worker, so it is nearly impossible to determine what might have ACTUALLY happened.

So, to all who read this post, it is important that you show deference to social workers and CPS workers all through the process where they are involved in your family. This is not to say you should allow them to take over your family. You must show the deference required... but if someone thinks that this deference is to prevent them from seeing that you HAVE done something not in your child's best interest, you must make quick but reasonable corrections to the government worker's error in any assumption that you have done anything they need to be worried about... and that includes continuing to be cordial to them while not allowing them to make aspersions on your actions or character. It is a fine line and if you allow yourself to become emotional, you can lose the game and your child.

This can be hard to do. Especially when your little one has been abused. This is not to say that you did anything bad... but that something happened when you could have prevented it with other choices. Think about the other choices before you get all emotional and make mistakes with people who hold your life and your child's life in their hands.

However, for it to get THIS far, what you have is a judge who believes in the person who reported this as abuse... bad judgement/neglect.... however it went down. If you did not testify or if you made a mess of it, you probably know what should have been said to deny your culpability in this. Try it out on your lawyer. See if it flies. Then practice your testimony until you no longer become emotional and can keep your logical approach rather than getting torn up about the abuse.

Good luck.
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