Opinion

in the Matter of C. P.

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Dec 8, 2015
Status
Published
Cited by
0 cases

The opinion

ACCEPTED

03-15-00276-CV

8121343

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/7/2015 3:29:57 PM

JEFFREY D. KYLE

CLERK

CAUSE NO. 03-15-00276-CV

_________________________________________________

FILED IN

3rd COURT OF APPEALS

AUSTIN, TEXAS

IN

IN THE COURT OF

OF APPEALS 12/8/2015 4:37:57 PM

FOR THE THIRD

THIRD DISTRICT

DISTRICT OF

OF TEXAS

TEXAS JEFFREY D. KYLE

AUSTIN

AUSTIN DIVISION

DIVISION Clerk

_________________________________________________

IN

IN THE MATTER

MATTER OF

OF C.P.

C.P. §§

_______________________________________________

APPELLANT’S

APPELLANT'S AMENDED

AMENDED BRIEF

_______________________________________________

Justin

Justin Bradford Smith

Texas

Texas Bar No. 24072348

24072348

Harrell, Stoebner, &

& Russell,

Russell, P.C.

P.C.

2106 Bird

Bird Creek

Creek Drive

Temple, Texas

Texas 76502

76502

Phone: (254) 771-1855

771-1855

FAX:

FAX: (254) 771-2082

771-2082

Email: justin@templelawoffice.com

justin@templelawoffice.com

ATTORNEY

ATTORNEY FOR APPELLANT

APPELLANT

ORAL

ORAL ARGUMENT NOT REQUESTED

ARGUMENT NOT

1

1

IDENTITYOF PARTIES

IDENTITY PARTIES AND

AND COUNSEL

COUNSEL

Appellant

C.P.

C.P.

Appellant’s

Appellant's Counsel

Counsel

Justin

Justin Bradford Smith

Harrell, Stoebner, &

& Russell,

Russell, P.C.

P.C.

2106 Bird

Bird Creek

Creek Drive

Temple, Texas

Texas 76502

76502

Phone: 254-771-1855

254-771-1855

FAX:

FAX: 254-771-2082

254-771-2082

Email: justin@templelawoffice.com

justin@templelawoffice.com

Appellant’s

Appellant's Trial Counsel

Blas J.

J. Coy,

Coy, Jr.

Jr.

807

807 Pecan

Pecan Street

Street

Bastrop,

Bastrop, Texas

Texas 78602

78602

Phone: 512-303-6963

512-303-6963

FAX:

FAX: (512) 303-6766

303-6766

E-MAIL:

E-MAIL: bjcoy@coylaw.net

Appellee

The State

State of Texas

Texas

Appellee’s

Appellee's Trial Counsel

Counsel

Bastrop County District

District Attorney

Kirsten Ruehman

Ruehman

804

804 Pecan

Pecan Street

Street

Bastrop,

Bastrop, TX

TX 78602

78602

Phone: 512-581-7125

512-581-7125

Fax: 512-581-7133

512-581-7133

Email: kirsten.ruehman@co.bastrop.tx.us

kirsten.ruehman@co.bastrop.tx.us

Appellee’s

Appellee's Appellate

Appellate Counsel

Greg Gilleland and Kirsten Ruehman

Ruehman

Bastrop County Assistant

Assistant District

District Attorney

Address,

Address, Phone, and

and Fax Same

Same As Above

Email: greg.gilleland@co.bastrop.tx.us

greg.gilleland@co.bastrop.tx.us

Email: kirsten.ruehman@co.bastrop.tx.us

kirsten.ruehman@co.bastrop.tx.us

22

TABLE

TABLE OF CONTENTS

CONTENTS

Identity Parties and

Identity of Parties and Counsel…………………………..………………………...

Counsel..............................................................22

Table of

of Contents……………………………………….………………………..3-4

Contents...........................................................................3-4

Index of

of Authorities…………………………………….………………………..5-6

Authorities........................................................................5-6

Statement of the

Statementof Case.........................................................................7

the Case……………………………………….……………………...7

Statement Regarding Oral

StatementRegarding Oral Argument………………………………………………7

Argument......................................................7

Presented...................................................................................7

Issue Presented.….……………..………....…………………….……………….....7

ISSUE ONE: The juvenile

juvenile court

court lacked

lacked personal jurisdiction over

personaljurisdiction

Appellant because

because the

the record does

does not affirmatively

affirmatively

show that at

at least

least one

one of his parents, his

his parents, his guardian,

guardian, or

or

his

his custodian

custodianwas servedwith summons

was served summonswith the the

original petition attached, nor does

does the

the record

record show

show

pursuant to

waiver pursuant to Texas

Texas Family Code

Code Section

Section 53.06(e)…...7

53.06(e)......7

Statement Facts.........................................................................8-12

of Facts…………………………………..…………………………..8-12

Statementof

Summary

Summary of the Argument..............................................................12-14

the Argument……………………………..……………………...12-14

ISSUE ONE: The juvenile

juvenile court

court lacked personal jurisdiction over

lacked personaljurisdiction

Appellant because

because the

the record does

does not affirmatively

affirmatively

show that at

at least

least one

one of his parents, his

his parents, his guardian,

guardian, or

or

his

his custodian

custodianwas servedwith summons

was served summonswith the the

original petition attached, nor does

does the

the record

record show

show

pursuant to

waiver pursuant to Texas

Texas Family Code

Code Section

Section 53.06(e)….12

53.06(e)....12

Argument…………………………………………………………………........15-27

Argument...................................................................................15-27

Law............................................................................................15-16

Law………………………………………………………………….................15-16

Application………………………………………………..…………………...16-26

Application................................................................................16-26

33

1. Neither Appellant’s

1. Neither Appellant's father

father nor

nor Kathy

Kathy Brown were served

Brown were served

with the

the summons

summonsand and the

the original petition, nor did did they waive

service......................................................................16-17

service…………………………………………………………….16-17

2.

2. The record does

does not affirmatively

affirmatively show that Camilla Brown

Lawrence

Lawrence is

is Appellant’s

Appellant's mother,

mother, guardian,

guardian, or

or custodian…............17-22

custodian...............17-22

3.

3. The record does

does not contain a a statutory

statutory waiver of service

service byby

anyone who could

anyone who be Appellant’s

could be Appellant's mother,

mother, guardian,

guardian, or or

custodian………………………………………………………….22-26

custodian...................................................................22-26

Conclusion……………………………………………………………………..26-27

Conclusion................................................................................26-27

Prayer…………………..…………………………………………………….........27

Prayer............................................................................................27

Certificate

Certificate of

of Compliance………………………………………………………....27

Compliance...................................................................27

Certificate

Certificate of

of Service……………………………………………………………...28

Service........................................................................28

Appendix………………………………………………………………………….29

Appendix.....................................................................................29

44

AUTHORITIES

INDEX OF AUTHORITIES

Court:

Texas Supreme Court:

Laidlaw Waste

Laidlaw Waste Sys.

Sys. (Dallas), Inc.

Inc. v.

v. City of Wilmer,

Wilmer, 904904 S.W.2d

S.W.2d 656656

1995)..................................................................19,22,

(Tex. 1995)……………………………………………...…………19, 22, n.9

n.9

Court of Criminal Appeals:

Appeals:

Johnson v.

Johnson v. State,

State, 72

72 S.W.3d

S.W.3d 346

2002)................................................19-20, 24-25

(Tex. Crim. App. 2002)…………………………………………19-20,

Texas Courts

Courts of Appeals:

Appeals:

Barker CATV Const., Inc.

Inc. v.

v. Ampro, Inc., 989

989 S.W.2d

S.W.2d 789

789

App.-Houston [1st

(Tex. App.—Houston [lst Dist.]

Dist.] 1999, no pet.).............................18-19

1999, no pet.)……….……………….18-19

Carlson v.

v. State,

State, 151

151 S.W.3d

S.W.3d 643

643

App.-Eastland 2004,

(Tex. App.—Eastland 2004, no

no pet.)………………………..15-16,

pet.).............................15-16, 18-19,

18-19, 22

22

Garcia v.

v. Gutierrez, 697

697 S.W.2d

S.W.2d 758

758

App.MorpusChristi 1985,

(Tex. App.—Corpus no writ)................................19,

1985, no writ)…………………………..19, n. n. 9

9

Graham v. McCord, 384 S.W.2d

v. McCord, S.W.2d 897

897

App.-San Antonio

(Tex. Civ. App.—San Antonio 1964, no writ)...................................16

1964, no writ)……………………………..16

In the Matter

In Matter of Edwards, 644

644 S.W.2d

S.W.2d 815

815

App.MorpusChristi

(Tex. App.—Corpus Christi 1982,

1982, writ ref’d

ref'd n.r.e.)……………………….15

n.r.e.)............................15

In the Matter

In Matter of M.D.R., 113

ofM.D.R., 113 S.W.3d

S.W.3d 552

552

App.-Texarkana 2003,

(Tex. App.—Texarkana 2003, no pet.)………………………………...15, 18

no pet.).......................................15, 18

In the Matter

In ofX

Matter of X.B.,

B., 369

369 S.W.3d

S.W.3d 350

350

App.-Texarkana 2012,

(Tex. App.—Texarkana 2012, no pet.)…………………………16, 18-19,

no pet.)..............................16, 18-19, 22

22

In re

In re G.A.T.,

G.A.T., 16

16 S.W.3d

S.W.3d 818

818

App.-Houston [14th

(Tex. App.—Houston [14th Dist.]

Dist.] 2000, pet. denied)………………….15,

2000, pet. denied)......................15, 23

23

McEntire v.

McEntire McEntire, 706 S.W.2d

v. McEntire, S.W.2d 347

347

App.-San Antonio

(Tex. App.—San 1986, writ dism’d)……………………………..25

Antonio 1986, dism'd)...................................25

55

Midstate Envtl. Servs.,

Servs., LP v. Peterson, 435

v. Peterson, 435 S.W.3d

S.W.3d 287 287

App.-Waco 2014, no

(Tex. App.—Waco no pet.).........................................18-19,

pet.)…………………………………..18-19, 22 22

Medeles v.

Medeles Nunez, 923

v. Nunez, 923 S.W.2d

S.W.2d 659

659

App.-Houston [1st

(Tex. App.—Houston [lst Dist.]

Dist.] 1996,

1996, writ denied)……………….18-19,

denied)...................18-19, 22

22

Seals

Seals v.

v. Upper

Upper Trinity Reg’l Water

Trinity Reg'l Water Dist., 145

145 S.W.3d

S.W.3d 291

291

App.-Fort Worth

(Tex. App.—Fort Worth 2004,

2004, pet.

pet. dism’d)……………………………25-26

dism'd).................................25-26

Smith

Smith v. Amarillo Hosp. Dist., 672

v. Amarillo 672 S.W.2d

S.W.2d 615

615

App.-Amarillo1984,

(Tex. App.—Amarillo no writ).............................................23

1984, no writ)……………………………………...23

State

State v.

v. C.J.F.,

C.J.F., 183

183 S.W.3d

S.W.3d 841

841

App.-Houston [1st

(Tex. App.—Houston [lst Dist.] pet. denied)…………………...15,

Dist.] 2005, pet. denied)........................15, 23

23

Wilson

Wilson v.

v. Newton County,

County, 269

269 S.W.

S.W. 227

App.-Beaumont 1925,

(Tex. Civ. App.—Beaumont 1925, no writ).................................16-17

no writ)……………………………16-17

Constitutions/Statutes/Rules

Tex. Fam.

Fam. Code

Code § 51.02(3)......................................................19,21,

§ 51.02(3)………………………………………………19, 21, n.

n. 9

9

Tex. Fam.

Fam. Code

Code § 51.02(4)......................................................19,21,

§ 51.02(4)………………………………………………19, 21, n.

n. 9

9

Tex. Fam.

Fam. Code

Code § 51.17(a)....................................................17-18, 22,

§ 51.17(a)…………………………………………….17-18, 22, 25

25

Tex. Fam.

Fam. Code

Code § 53.06(a)(2).........................................................15, 23

§ 53.06(a)(2)………………………………………………...15, 23

Tex. Fam.

Fam. Code

Code § 53.06(e)........................................7, 12,

§ 53.06(e)………………………………….7, 12, 14-15,

14-15, 22-24, 26

26

Tex. R.

R. Civ. P. 106(b)(1)...................................................................17

P. 106(b)(1)………………………………………………………….17

66

STATEMENTOF THE

STATEMENT THE CASE

Nature of the

the Case:

Case: This is

is a juvenile appeal

a juvenile appeal from anan order modifying

modifying

Appellant’s

Appellant's disposition.

disposition. (VIII

(VIII R.R.

R.R. at

at 44)

44) (I C.R. at 62-

62-

65).

65).

Judge/Court:

Judge/Court: Judge

Judge Benton Eskew, County Court at

at Law, Sitting as

as the

the

Juvenile Court (I C.R. at 62).

62).

Pleas:

Pleas: Not true. (VII

(VII R.R. at

at 8).

8).

Trial Court Disposition: The

Trial The trial judge

judge revoked

revoked Appellant’s probation and

Appellant's probation and

committed him to to the

the Texas

Texas Juvenile Justice Department

Department

for an

an indeterminate

indeterminate sentence. (VIII

(VIII R.R. at 44).

44).

STATEMENT REGARDING

STATEMENT REGARDING ORAL ARGUMENT

ORAL ARGUMENT

The precedents

precedents and the

the record are

are clear in this case,

case, so

so Appellant does

does not

request

request oral argument.

argument. However, should

should the

the Court believe oral argument

argument is

is

Appellant's counsel

necessary, Appellant’s counsel will be

be ready to

to participate.

ISSUE PRESENTED

PRESENTED

ISSUE ONE: The juvenile

juvenile court

court lacked personal jurisdiction over Appellant

lacked personaljurisdiction

because the

because the record does

does not affirmatively

affirmatively show that at least

least one of his parents, his

his parents, his

guardian,

guardian, or

or his

his custodian served with summons

custodian was served summons with the

the original petition

attached, nor does

attached,nor does the

the record show waiver pursuant

pursuant to

to Texas

Texas Family Code

Code Section

Section

53.06(e).

53.06(e).

77

FACTS' 1

STATEMENT OF FACTS

STATEMENT

The State filed an

an original petition bringing two counts of delinquent

conduct,

conduct, and alleged

alleged that James

James Pertolanitz and Camilla Brown Lawrence are

are

Appellant’s

Appellant's parents.

parents. (I C.R. at 6-7).

6-7). In the

the return attached

attached to

to the

the summons

summons (with

(with

the

the original petition attached)

attached) that was

was directed

directed to Appellant, Camilla Brown

00007-00008).22

Lawrence is

is served.

served. (Appendix at

at Tab 1,

1, 00007—00008). In the

the return attached

attached

to

to the

the summons

summons (with

(with the

the original petition attached)

attached) that was

was directed

directed to

to Camilla

Brown Lawrence, Appellant is

is served

served at

at the

the same

same address.

address. (Appendix at Tab 1,

1,

00009—000010).

00009-000010). There

There are

are various other summonses file with the

summonses on file the clerk,

clerk,

including ones

ones to

to James

James Pertolanitz, but none of these

these show service

service on James

James

Pertolanitz or

or Camilla Brown Lawrence.

Lawrence. (Appendix at Tab 1,

1, 000001—000026).

000001-000026).

There

There is

is a

a summons

summons directed

directed to James Pertolanitz with a

to James a return stating

stating it was

was

served on “James

served "James Pertolanitz c/o wife”, and

c/o wife", and the

the summons

summons and

and the

the return have

have

notations

notations indicating that James’ wife was at

James' wife at the

the house. (Appendix, Tab 4,

4,

000001—000002).

000001-000002). The notations

notations indicate the process server

the process spoke with someone

server spoke someone

on

on the phone, but whether this

the phone, this was James

James or

or his wife is

his wife unclear. (Appendix, Tab 4,

is unclear. 4,

000001—000002).

000001-000002). However, the

the summons

summons does

does not show personal

personal service

service on

on

1

Appellant

Appellant does not challenge

does not challenge the

the sufficiency

sufficiency of

of the

the evidence

evidence to

to support

support the

the trial

trial court’s

court's decision

decision

to

to modify his disposition, so

modify his so only those

those facts necessary to

facts necessary to resolve the jurisdictional

resolve the jurisdictional question

question are

are

presented here.

resented here.

2

Appellant has asked

Appellant has asked the

the clerk to

to supplement

supplement thethe record with the

record with the summonses

summonses and and returns, but in

returns, but

the

the interim

interim these

these are

are included in the

the Appendix.

Appendix.

88

James,

James, and

and he

he did not appear

appear in the

the case.

case. (Appendix, Tab 4,

4, 000001—000002)

000001-000002)

(Volumes 2-8 of

of the

the Reporter’s

Reporter's Record)

Record) (I C.R. at 1-99).

1-99).

The trial court’s Nunc Pro

court's Nunc Pro Tunc

Tunc Order

Order Revoking

Revoking Probation

Probation leading to

to the

the

appeal “finds

instant appeal "finds that Camilla (Blossum) Lawrence [is]

[is] the

the mother responsible

responsible

for

for the

the support

support of

of [Appellant].”

[Appellant]." (I

(I C.R.

C.R. at

at 64)

64) (Appendix at

at Tab 2, 000003-

2, 000003—

000005).

000005). Nowhere does

does the

the record show

show that Camilla Blossum Lawrence was

was

served

served with summons,

summons, nor

nor does

does the

the reporter’s

reporter's record

record show

show that

that she

she made

made a

a

voluntary appearance

appearance in any hearing, 2-8 of

hearing, (Volumes 2-8 of the

the Reporter’s

Reporter's Record),

Record), nor

nor

does the clerk’s

does the clerk's record

record contain

contain aa written

written stipulation waiving service

stipulation waiving service of summons.

summons.

(I C.R. at 1-99). Likewise,

at 1-99). Likewise, the

the court’s

court's docket

docket sheet

sheet does

does not

not contain

contain any

any notation

notation

that

that any

any of

of Appellant’s

Appellant's parents,

parents, guardian,

guardian, or

or custodian

custodian were served, waived

service, or

or appeared.

appeared. (I

(I C.R. at

at 96-97).

When the

the court

court originally adjudicated

adjudicated Appellant delinquent, the

the court

court signed

signed

an

an order reciting that Appellant was present with his

was present his attorney and Appellant’s

attorney and Appellant's

“mother,

"mother, Camilla Brown Lawrence, also present”, and

also [was] present", noted “all

and noted parties

"all parties

announced ready” as

announcedready" as that

well as

as well that “due

"due notice

notice had been served

had been served on all parties

parties for the

the

time

time required by law”.

required by law". (I C.R.

C.R. at

at 11)

11) (underlining in original)

original) (Appendix at Tab 2,

2,

000001). “Respondent’s

"Respondent's Plea

Plea of

of True,

True, Waiver,

Waiver, Stipulation

Stipulation &

& Judicial

Judicial Confession”,

Confession",

which Appellant executed

executed the

the same

same day

day as

as the

the adjudication hearing,

hearing, contains

contains aa

signature

signature on

on the

the “Parent

"Parent or

or Guardian

Guardian of

of Child” blank, but

Child" blank, but that

that signature

signature is

is not

not of

of

99

Camilla Brown Lawrence

Lawrence or

or Camilla Blossum Lawrence.

Lawrence. (I C.R. at 10).

10). The

same

same holds true of the Conditions of Probation

Probation signed

signed on June

June 14,

14, 2012. (I C.R. at

at

17).33

17). The

The record

record contains

contains an

an Order

Order of

of Probation

Probation stating

stating that

that the

the “Court

"Court finds

finds

Camilla Brown Lawrence is

is the person responsible

the person for supporting

responsiblefor supporting [Appellant]”

[Appellant]" and

and

states

states she

she is

is responsible

responsible for

for supporting

supporting Appellant

Appellant “while

"while he

he resides

resides at

at [a particular

[a particular

address]”, but fails

address]", but fails to

to find

find that this

this address,

address, at which he

he was

was served, is

is the

the address

address

at which he

he resided

resided at

at that time. (I C.R. at 14)

14) (underlining in original)

original) (Appendix

at Tab 1,

1, 000009—000010).

000009-000010). The Amended

Amended Order of Probation

Probation signed

signed on

on October

October

9,

9, 2012 also

also states

states Camilla Brown Lawrence is

is the person responsible

the person responsible for

supporting

supporting Appellant and places

places Appellant on

on probation in her custody.

custody. (I C.R. at

at

24-25).

In the

the Amended Conditions of Probation

Probation signed

signed on October

October 9,

9, 2012, the

the

signature blank for

signature blank for the

the “Parent/Guardian”

"Parent/Guardian" contains

contains aa different

different signature

signature than

than the

the

previous parent/guardian signatures; this

parent/guardiansignatures; this time,

time, the

the signature

signature is by “Blossom

is by "Blossom Brown

Brown

28).44

Lawrence”.

Lawrence". (I

(I C.R.

C.R. at

at 28). The Second

Second Amended

Amended Conditions of Probation

Probation

5

appears to

appears be signed

to be by “C.

signed by "C. Blossom

Blossom Brown

Brown Lawrence”.

Lawrence". (I C.R. at

at 31).

31)." Again, in

the

the Second

Second Amended

Amended Order of Probation, Appellant is

is committed to

to the

the custody

custody of

“Camilla

"Camilla Brown Lawrence”, who is

Lawrence", who is found

found to be the

to be the person

person responsible

responsible for

3

The paragraph

paragraph above the the signature recites that

signature recites that the

the “Conditions

"Conditions of

of Probation were read

Probation were read and

3

and

explained

explained toto me

me and

and mymy child….”

child...." (I

(I C.R.

C.R. at at 17).

17).

4

4

This

This signature

signature isis also preceded by

also preceded by aa recitation

recitation that

that the

the conditions were “read

conditions were "read and

and explained

explained to

to

me

me and

and my

my child”.

child". (I(I C.R.

C.R. at

at 28); see n.

28); see n. 3, supra.

3, supra.

5

*

This

This too

too contains

contains the

the same

same recitation as as in footnotes

footnotes 33 and

and 4, supra.

4, supra.

10

10

supporting

supporting Appellant. (I C.R. at

at 32-33) (underlining in original).

original). In the

the Third

Amended Order of Probation

Probation for Residential

Residential Placement,

Placement, the

the court

court found that

“Blossom

"Blossom Lawrence” was the

Lawrence" was the person responsible for

personresponsible for supporting

supporting Appellant.

Appellant. (I C.R.

at 39)

39) (underlining in original).

original). The Order Extending Disposition signed

signed January

28,

28, 2014

2014 contains

contains the

the signature

signature of yet another

of yet person on

another person on the

the “Parent” blank. (I

"Parent" blank. (I

C.R. at 43).

43). It is

is not clear who this

this person

person is because the

is because the handwriting is

is illegible:

illegible:

the

the first

first letter

letter may be an

may be an “H”

"H" or

or a

a “K”,

"K", and

and the

the rest

rest is

is largely

largely indecipherable.

indecipherable. (I

(I

C.R. at 43).

43). The Third Amended

Amended Conditions of Probation

Probation contain aa signature

signature on

on

the

the “Parent/Guardian

"Parent/Guardian Signature” blank of

Signature" blank of what appears

appears to be

be the

the same

same person, but

43).66

it is

is likewise indecipherable.

indecipherable. (I C.R.

C.R. at

at 43). The Third Amended

Amended Order of

Probation for Residential Placement “finds

Residential Placement "finds that

that it

it is

is contrary

contrary to

to the

the child’s

child's welfare

welfare

to

to continue to

to remain in the

the home Brown" and

home of Kathy Brown” and has

has an

an “X”

"X" next

next to

to the

the

blank reading

blank reading “The parent/guardian/custodian fails to provide aa safe

"The parent/guardian/custodian safe home

home

environment.”

environment." (I

(I C.R.

C.R. at

at 45) original).'7 The Agreed Amended

45) (underlining in original). Amended

Order of Probation

Probation for Residential Placement signed

Residential Placement signed on

on January

January 26,

26, 2015

2015 “finds

"finds

Camilla Lawrence is

is the person responsible

the person for supporting

responsiblefor supporting [Appellant].”

[Appellant]." (I

(I C.R.

C.R. at

at

6

6

As with the

As with the other

other similar blanks, this

similar blanks, this signature

signature is is also preceded by

also preceded by aa recitation that the the

conditions were explained

conditions were explained “to"to me

me and

and my

my child”.

child". (I(I C.R.

C.R. atat 43).

43). See, n. 3,

See, n. 3, 4,

4, and

and 5, supra.

5, supra.

7

7

Service was attempted,

Service was attempted, andand apparently completed,

completed, on on Kathy BrownBrown for for the

the hearing onon the

the

State’s

State's original petition to

original petition to modify

modify set

set for October 28, 2014. (Appendix at

for October 28, 2014. (Appendix at Tab 1, 000015—

Tab 1, 000015-

000016).

000016). The

The summons,

summons, in in addition

addition to to aa stamp

stamp on on the

the front

front saying

saying “SERVED”,

"SERVED", contains

contains

notes that indicate failed service

handwritten notes service attempts

attempts and and a a telephone

telephone conversation

conversation with with Kathy

Kathy

as

as she was en

she was en route

route toto court, while the

court, while the return

return claims

claims she was served. (Appendix

she was (Appendix at at Tab 1,1,

000015).

000015). In anyany event,

event, whoever KathyKathy Brown

Brown is, is, she

she waswas served, with the

served, not with the Original

Original Petition

but with

but with the

the Petition to

to Modify.

Modify. (Appendix

(Appendix at at Tab 1, 1, 000015).

000015).

11

11

53)

53) (underlining in original).

original). The Order of Probation for Residential

Residential Placement

Placement

states

states that

that the

the “court

"court finds

finds that

that it

it is

is contrary

contrary to

to the

the child’s

child's welfare

welfare to

to continue

continue to

to

remain in the

the home Lawrence", and

home of Camilla Lawrence”, has an

and has an “X”

"X" next

next to

to the

the blank

blank

reading

reading “The parent/guardian/custodian exhibits

"The parent/guardian/custodian exhibits aa pattern

pattern of being unable

of being unable to

to

provide adequate

provide adequate supervision”.

supervision". (I

(I C.R.

C.R. at

at 55).

55). The

The Order

Order Extending

Extending Disposition

Disposition

signed 2, 2015 contains

signed on January 2, contains Camilla

Camilla Blossom

Blossom Lawrence’s

Lawrence's signature

signature on the

the

“Parent” blank. (I

"Parent" blank. (I C.R.

C.R. at

at 57).

57). Likewise,

Likewise, the

the next page is

next page is signed by Camilla

signed by Camilla

58).88

Blossom

Blossom Lawrence

Lawrence on

on the blank “Parent/Guardian

the blank "Parent/Guardian Signature”.

Signature". (I

(I C.R.

C.R. at

at 58).

SUMMARY OF THE

SUMMARY ARGUMENT

THE ARGUMENT

ISSUE ONE: The juvenile

juvenile court

court lacked personal jurisdiction over Appellant

lacked personaljurisdiction

because the

because the record does

does not affirmatively

affirmatively show that at least

least one of his parents, his

his parents, his

guardian,

guardian, or

or his

his custodian served with summons

custodian was served summons with the

the original petition

attached, nor does

attached,nor does the

the record show waiver pursuant

pursuant to

to Texas

Texas Family Code

Code Section

Section

53.06(e).

53.06(e).

Unless the

Unless the record affirmatively

affirmatively shows

shows that at least

least one

one parent,

parent, guardian,

guardian, or

custodian

custodian of aa juvenile

juvenile is served with the

is properly served the summons

summons and

and a

a copy

copy of the

the

original petition, or unless the

or unless the record shows waiver pursuant

showswaiver pursuant to

to Texas

Texas Family Code

Code

Section

Section 53.06(e),

53.06(e), the juvenile court

the juvenile court does

does not acquire jurisdiction, and

acquire jurisdiction, and the

the case

case must

be

be reversed

reversedand

and remanded.

remanded.

8

8

As with the

As with the other

other similar blanks,

blanks, this

this signature

signature is

is also preceded by

also preceded by aa recitation that the

the

conditions were explained

conditions were explained “to

"to me

me and

and my

my child”.

child". (I

(I C.R.

C.R. at

at 43).

43). See, n. 3,

See, n. 3, 4,

4, 5,

5, and

and 6, supra.

6, supra.

12

12

Here, the

the record does

does not affirmatively

affirmatively show

show service

service nor does

does it contain a

a

statutory

statutory waiver.

waiver. It

It is undisputed that

is undisputed that Appellant’s

Appellant's father,

father, James

James Pertolanitz,

Pertolanitz, was

not personally served,

served, nor did he

he appear

appear or

or waive service. Service

Service on his wife is

his wife is

ineffective because

because she

she is

is not his

his general

general agent

agent and there is

is no

no showing that he

he

made

made her his

his agent

agent for service process. Kathy

service of process. Kathy Brown,

Brown, if she was Appellant’s

she was Appellant's

guardian

guardian or

or custodian

custodian (or even

even mother), was

was apparently served with summons—but

apparently served summons-but

not with the

the summons

summons that had

had the

the original petition attached, making this

this service

service

ineffectual to

to confer jurisdiction.

confer jurisdiction.

There

There remains

remains Camilla Brown Lawrence.

Lawrence. While

While she

she was served, there is

is no

no

clear

clear indication

indication that

that she

she is,

is, in

in fact,

fact, Appellant’s

Appellant's mother or

or guardian

guardian or

or custodian.

custodian. In

fact,

fact, service

service on her was

was defective because

because the

the summons was directed to Appellant,

summonswas

not her, and

and the

the record does

does not show that she

she answered

answeredor

or appeared,

appeared, it is

is as

as if she

she

suffered

suffered aa default judgment. The order giving

giving rise

rise to

to this

this appeal

appeal finds that aa

different person is

different person is Appellant’s

Appellant's mother.

mother. The original adjudication judgment does

does

not

not actually

actually find

find that

that Camilla

Camilla Brown

Brown Lawrence

Lawrence is

is Appellant’s

Appellant's mother,

mother, though

though it

it

states

states she

she is,

is, and

and in any event

event such aa finding

finding is

is contradicted by the

contradicted by the later finding.

finding.

The record contains

contains six different signatures

signatures from persons purporting to be

to be

Appellant’s parent or

Appellant's parent or guardian,

guardian, and

and the

the one

one from the

the hearing

hearing at

at which Camilla

Brown Lawrence

Lawrence allegedly appeared

appeared is utterly unlike later signatures

is utterly that might be

signaturesthat be

from her.

her. The record simply fails to

to show that Camilla Brown Lawrence is,

is, in

13

13

fact,

fact, Appellant’s

Appellant's mother, guardian,

guardian, or

or custodian,

custodian, and

and the

the court

court made,

made, at best,

at best,

contradictory findings regarding

regarding the

the same.

same.

Neither does

does the

the record contain a

a waiver of service

service of summons pursuant to

summonspursuant to

Section

Section 53.06(e)

53.06(e) of the

the Family Code.

Code. Such a

a waiver may only be

be by

by written

written

stipulation or

or voluntary appearance

appearance at the

the hearing

hearing for which the

the summons was

summons was

issued.

issued. None of the

the documents

documents bearing

bearing the

the signature

signature of any of the people who

the people

could be Appellant’s

could be Appellant's parent,

parent, guardian,

guardian, or

or custodian

custodian is

is a written stipulation

a written stipulation of

of

waiver of service. None of these writings can be

these writings be voluntary appearances

appearances at the

the

hearing-that is,

hearing—that court-for which the

is, in court—for the summons

summons was issued.

issued. None of the

the

hearings

hearings in

in the

the reporter’s

reporter's record

record show

show Appellant’s parent, guardian,

Appellant's parent, guardian, or

or custodian

custodian

appeared

appeared or

or were even

even present,

present, and

and the

the recitation in the

the judgment of adjudication is

is

therefore

therefore either false, or

or Camilla Brown Lawrence, whoever she

she is,

is, did

did not

“appear”

"appear" as

as that

that term

term is understood in the

is understoodin the law.

Because

Because the

the record does

does not affirmatively

affirmatively show service

service of the

the summons

summons of

the

the original petition on the

the parent,

parent, guardian,

guardian, or

or custodian

custodian of Appellant, and because

and because

the

the record does

does not contain a

a waiver of service

service of that summons,

summons, the

the case

case must be

be

reversed

reversedand

and remanded.

remanded.

14

14

ARGUMENT

ARGUMENT

Law

Law

Texas

Texas Family Code

Code §

§ 53.06(a)(2)

53.06(a)(2) requires

requires the juvenile court

the juvenile court to

to direct the

the

issuance

issuance of

of summons

summons to

to “the

"the child’s

child's parent,

parent, guardian,

guardian, or

or custodian”,

custodian", and service

service

upon either parent

parent is

is sufficient. In the Matter

Matter of Edwards, 644

ofEdwards, 644 S.W.2d

S.W.2d 815,

815, 818

818

App.-Corpus Christi

(Tex. App.—Corpus Christi 1982,

1982, writ ref’d

ref'd n.r.e.).

n.r.e.). A party other than aa child may

waive service summons, but only by

service of summons, by “written

"written stipulation

stipulation or

or by

by voluntary

voluntary

appearance

appearance at

at the

the hearing.”

hearing." Tex.

Tex. Fam.

Fam. Code

Code §

§ 53.06(e).

53.06(e).

Service

Service of summons

summons with the

the original petition is

is the

the act

act that confers

jurisdiction on the

jurisdiction juvenile court.

the juvenile court. In re

re G.A.T.,

G.A.T., 16

16 S.W.3d

S.W.3d 818,

818, 823 App.-

823 (Tex. App.—

Houston [14th Dist.]

Dist.] 2000, pet.

pet. denied);

denied); State

State v.

v. C.J.F.,

C.J.F., 183

183 S.W.3d

S.W.3d 841,

841, 851

851 (Tex.

App.-Houston [1st

App.—Houston [lst Dist.]

Dist.] 2005, pet.

pet. denied).

denied). Likewise, where the

the record does

does not

affirmatively

affirmatively show

show service

service of the

the summons

summons and original petition on the parent or

the parent or

the juvenile, the

the juvenile, juvenile court

the juvenile court fails to

to acquire jurisdiction if it is

acquire jurisdiction is the juvenile who

the juvenile

is

is not served, In the Matter of M.D.R., 113

the Matter 113 S.W.3d

S.W.3d 552,

552, 553 App.-

553 (Tex. App.—

Texarkana

Texarkana 2003, no

no pet.), and fails to

to acquire jurisdiction if it is

acquire jurisdiction is the parent who is

the parent is

not served

servedand the parent does

the parent does not waive service pursuant to

service pursuant to the

the statute.

statute. Carlson v.

v.

State,

State, 151

151 S.W.3d

S.W.3d 643, App.-Eastland 2004, no

643, 645-646 (Tex. App.—Eastland no pet.); Tex. Fam.

Fam.

Code

Code §

§ 53.06(e).

53.06(e). The juvenile

juvenile court

court fails to

to acquire jurisdiction if the

acquire jurisdiction parent is

the parent is not

15

15

served

served and does

does not waive service,

service, even

even if the juvenile is

the juvenile served with

is properly served

summons

summonsand

and the

the original petition. Carlson, 151

151 S.W.3d

S.W.3d at 645.

645.

Failure to

to acquire jurisdiction over the

acquire jurisdiction the case

case means

means the

the adjudication order is

is

void and subject

subject to

to collateral attack.

attack. In the Matter ofXB.,

Matter of X.B., 369

369 S.W.3d

S.W.3d 350,

350, 352-

352-

354 App.-Texarkana 2012, no

354 (Tex. App.—Texarkana no pet.).

pet.).

Application

1. Neither

1. Neither Appellant’s

Appellant's father

father nor

nor Kathy Brown were were served

served with

with the

the

summons and the original petition,

petition, nor

nor did

did they waive service

It

It is

is indisputable

indisputable that

that James

James Pertolanitz,

Pertolanitz, Appellant’s

Appellant's alleged

alleged father, was not

servedwith summons

personally served summonsand

and the

the original petition, nor did he

he waive service

service

by written

by written stipulation or

or voluntary appearance at

at the

the adjudication hearing

hearing or

or any

other hearing.

hearing. (Appendix at

at Tab 1,

1, 000001—000026;

000001-000026; at

at Tab 4,

4, 000001—000002)

000001-000002)

(Volumes 2-8 of the Reporter's Record)

the Reporter’s Record) (I

(I C.R.

C.R. at

at 1-99).

1-99). The record shows

shows one

one

summons

summons directed

directed to

to James

James that is

is served

served on his wife, (Appendix at Tab 4,

his wife, 4,

000001—000002),

000001-000002), but this cannot substitute

substitute for personal

personal service

service on James

James himself

without some

without some evidence

evidence that James’ wife was his

James' wife his agent

agent for service

service of process.

process.

Graham v. McCord, 384

v. McCord, 384 S.W.2d

S.W.2d 897,

897, 898 App.-San Antonio

898 (Tex. Civ. App.—San Antonio 1964,

1964, no

no

writ) (“While

("While aa wife

wife is

is not a

a general

general agent

agent of her husband…a

husband...a husband

husband can make

make

his wife his

his wife his agent.”);

agent."); Wilson

Wilson v.

v. Newton County,

County, 269

269 S.W.

S.W. 227, 228

228 (Tex. Civ.

App.-Beaumont 1925,

App.—Beaumont no writ) (“Mrs.

1925, no ("Mrs. Wilson was aa necessary party to

to the

the

proceedings, and,

proceedings, and, such being true, the

the notice must have been served

have been served upon her

16

16

personally, and

and not by

by delivery to

to her husband.”);

husband."); cf.

cf Tex. R.

R. Civ. P.

P. 106(b)(1)

106(b)(1)

(substituted service “by

(substituted service "by leaving aa true copy

copy of the

the citation, with a

a copy

copy of the

the

petition attached, with anyone over sixteen years of age

sixteen years age at the

the location specified

specified in

such affidavit”

affidavit" permitted only upon motion and affidavit

affidavit showing, among

among other

things, unsuccessful

unsuccessful attempted

attempted service

service upon defendant

defendant himself) and

and Tex. Fam.

Fam.

Code

Code §

§ 51.17(a)

51.17(a) (the Texas

Texas Rules

Rules of Civil Procedure,

Procedure, with exceptions

exceptions not

applicable

applicable here,

here, “govern proceedings under this

"govern proceedings title"). Nothing shows

this title”). shows that she

she

was his agent-even if we assume

his agent—even assume the process server

the process server spoke

spoke to

to James

James on

on the phone,

the phone,

nothing shows

shows James

James told the

the server

server his

his wife

wife could accept

accept service

service on his

his behalf.

It is

is also

also indisputable

indisputable that, whoever Kathy Brown is,

is, she servedwith

was not served

she was

summons

summons and the

the original petition (Appendix at

at Tab 1,

1, 000015—000016),

000015-000016), nor did

did

she

she waive service by written

service by or voluntarily

written stipulation or voluntarily appear

appear at the

the adjudication

hearing

hearing or 2-8 of

or any other hearing. (Volumes 2-8 of the

the Reporter’s

Reporter's Record)

Record) (I

(I C.R. at

at 1-

1-

99).

99). Finally,

Finally, it is undisputable that Appellant was

is undisputable served with summons

was served summons and

and the

the

original petition, (Appendix at

at Tab 1,

1, 000009—000010),

000009-000010), although we might

wonder about

about the served with aa summons

the effect of him being served summons directed to Camilla

Brown Lawrence rather

rather than to himself.

2.

2. The record

record does affirmatively show that Camilla Brown

does not affirmatively

Lawrence

Lawrence is

is Appellant’s

Appellant's mother,

mother, guardian,

guardian, or

or custodian

custodian

So, unless Appellant’s

So, unless Appellant's mother,

mother, guardian,

guardian, or

or custodian served with

custodian was served

summons

summons and

and the

the original petition (or waived service pursuant to

service pursuant the statute),

to the statute), the

the

17

17

juvenile court

juvenile court never

never acquired jurisdiction over his

acquired jurisdiction his case,

case, the

the original adjudication

order and all subsequent

subsequentorders are

are void, and the

the case

case must be

be remanded for aa new

remandedfor

trial. Carlson, 151

151 S.W.3d

S.W.3d at 645-646; In

In the ofXB.,

Matter of

the Matter X.B., 369

369 S.W.3d

S.W.3d at 354-

355.

355. We

We know that Camilla Brown Lawrence was served

served with summons

summons and

and the

the

original petition, (Appendix at

at Tab 1,

1, 000007—000008),

000007-000008), but what we do

do not

know, and

and what the

the record does

does not affirmatively

affirmatively show,

show, is

is whether she

she is

is

Appellant’s

Appellant's mother,

mother, guardian,

guardian, or

or custodian. In the

custodian. In Matter of

the Matter M.D.R., 113

ofM.D.R., 113 S.W.3d

S.W.3d

at 553

553 (record

(record must affirmatively

affirmatively show service

service of summons

summons and

and original petition).

Furthermore, because the

Furthermore, because summons with which she

the summons was served

she was served is

is directed

directed to

to

Appellant,

Appellant, “there

"there can be no

can be no doubt

doubt that

that aa complete

complete discrepancy between the

discrepancy between the

defendant

defendant listed in the

the petition and

and the

the entity or person that the

or person the citation is

is directed

to

to is

is a

a defect in service,”

service," Midstate Envtl. Servs.,

Servs., LP v. Peterson, 435

v. Peterson, 435 S.W.3d

S.W.3d 287,

287,

App.-Waco 2014, no

290 (Tex. App.—Waco no pet.) (finding

(finding defective service

service for numerous

numerous

reasons

reasons under Texas

Texas Rule of Civil Procedure in an

an appeal

appeal from aa default

judgment), Tex. Fam.

Fam. Code

Code §

§ 51.17(a)

51.17(a) (the Texas Rules of Civil Procedure, with

Texas Rules

exceptions

exceptions not

not applicable

applicable here,

here, “govern

"govern proceedings

proceedings under this title”), Medeles v.

title"), Medeles v.

Nunez, 923

Nunez, 923 S.W.2d

S.W.2d 659,

659, 662-663 App.-Houston [1st

662-663 (Tex. App.—Houston [lst Dist.] 1996, writ

Dist.] 1996,

denied)

denied) (finding

(finding various defects in service

service warranting reversal

reversal of default judgment,

including

including omission

omission of

of one

one letter

letter from

from the

the defendant’s

defendant's last

last name)

name) overruled on

other grounds by Barker CATV Const., Inc.

Inc. v.

v. Ampro, Inc., 989

989 S.W.2d

S.W.2d 789

789 (Tex.

18

18

App.-Houston [1st

App.—Houston [lst Dist.]

Dist.] 1999,

1999, no

no pet.), so

so even

even if the

the record

record affirmatively

affirmatively

showed

showed she

she is

is Appellant’s

Appellant's mother,

mother, service would still

service would be defective

still be defective and

and thus

thus

insufficient

insufficient to

to confer jurisdiction.9 Carlson, 151

confer jurisdiction. 151 S.W.3d

S.W.3d at 645-646; In the Matter

Matter

ofXB.,

of X.B., 369

369 S.W.3d

S.W.3d at 354-355.

354-355. Midstate and Medeles

Medeles considered whether service

consideredwhether service

was sufficient in view of default judgments; this case

case is

is analogous

analogous to

to a

a default

judgment because, as will be

because, as be shown

shown below, neither Camilla Brown Lawrence

Lawrence nor

anyone else

else but Appellant and his

his attorney,

attorney, ever

ever appeared.

appeared. Thus, it is

is as

as if she

she

suffered

suffered aa default judgment.

The order giving

giving rise

rise to

to the

the instant appeal

appeal finds that aa different person,

Camilla

Camilla Blossum

Blossum Lawrence,

Lawrence, is

is Appellant’s

Appellant's mother.

mother. (I

(I C.R.

C.R. at

at 64).

64). “We

"We must

presume that statement

presume statement correct

correct in the

the absence

absence of direct

direct proof of its falsity”.

falsity".

9

For

For this

this reason too, too, even if the the record

record showed

showed that Camilla Brown Lawrence, Lawrence, although not

Appellant’s

Appellant's mother,

mother, was was atat least

least hishis “custodian”

"custodian" as as that

that term

term is is defined

defined in in the

the Family

Family Code,

Code, seesee

Tex.

Tex. Fam.

Fam. Code § § 51.02(3) (“‘Custodian’

("'Custodian' means the

the adult with

with whom

whom the

the child resides”),

resides"), service

service

would still

would be defective

still be defective and and the the juvenile

juvenile court would not have

court would have acquired jurisdiction. But the

acquired jurisdiction. the

record

record doesdoes not show, beyond the

show, beyond the fact

fact that Appellant

Appellant and and Camilla Brown Lawrence Lawrence were were served

at

at the

the same

same address

address (both (both listed on on the

the summons),

summons), that that Appellant

Appellant resided

resided withwith her atat the

the time

time hehe

was served. (Appendix

was (Appendix at at Tab 1, 000007-000010); see

1, 000007—000010); see (I C.R.

C.R. atat 14)

14) (reciting that Camilla

Brown

Brown Lawrence

Lawrence is is responsible

responsible for for supporting

supporting Appellant

Appellant “while "while he he resides

resides at at [a

[a particular

address]”,

address]", but but failing

failing to to find

find that

that this

this was his permanent

was his permanent residence

residence or where he

or where he resided

resided whenwhen he he

was served);

was served); Garcia v. v. Gutierrez,

Gutierrez, 697 S.W.2d S.W.2d 758, 760 (Tex. App.-Corpus Christi

(Tex. App.—Corpus Christi 1985,

1985, nono

writ) (service

(service not limited

limited to to address

address listed in the the citation, as as defendant

defendant may may be be served wherever

he may

he may be be found). The The State’s

State's original petition alleges

original petition alleges the the same

same address

address for both (I

for both (I C.R.

C.R. at at 7),

7),

but it is

but well-settled that,

is well-settled that, inin general,

general, pleadings, even if if sworn

sworn to to or verified, are

or verified, are not evidence.

evidence.

Laidlaw Waste

Laidlaw Waste Sys.

Sys. (Dallas),

(Dallas), Inc. Inc. v. v. City

City of Wilmer,

Wilmer, 904 S.W.2d S.W.2d 656, 656, 660 (Tex.(Tex. 1995)1995)

(“pleadings are

("pleadings are not competent evidence,

competent evidence, even if sworn or verified.").

sworn or verified.”). Likewise,

Likewise, there is nothing

there is

in

in the

the record

record to to show

show that that she

she isis Appellant’s

Appellant's guardian,

guardian, as as that

that term

term isis defined

defined in the the Family

Family Code.Code.

Tex.

Tex. Fam.

Fam. Code Code § § 51.02(4) ("'Guardian'"

(“‘Guardian’” means

means the

the person

person who,

who, under

under court

court order,

order, is

is the

the

guardian

guardian of the person of the

the person the child or the public

or the public oror private agency with whom the

agency with the child has has been

placed by

placed by aa court.”).

court.").

19

19

Johnson v.

Johnson v. State,

State, 72

72 S.W.3d

S.W.3d 346,

346, 349

349 (Tex. Crim. App. 2002) (judgment reciting

the

the defendant “waived trial by

defendant"waived by jury").

jury”). But then, the

the original adjudication judgment

stated

stated (without directly finding)

finding) aa contrary conclusion: Appellant’s

Appellant's “mother,

"mother,

Camilla Brown Lawrence,

Lawrence, also

also [was] present”.

present". (I C.R. at 11)

11) (underlining in

original). So, “must

original). So, "must [we] presume

presume that statement

statement correct

correct in the

the absence

absence of direct

direct

proof of its falsity”? Johnson, 72

falsity"? Johnson, 72 S.W.3d

S.W.3d at 349.

349. That same

same judgment recited that

“due

"due notice

notice had

had been

been served

served on

on all

all parties

parties for

for the

the time

time required

required by

by law”.

law". (I

(I C.R.

C.R. at

at

11).

11). So,

So, must we presume

presume that statement

statement correct? Johnson,

Johnson, 72

72 S.W.3d

S.W.3d at

at 349.

349.

But, again, we have

again, we have the

the later judgment finding

later judgment finding aa different person to

different person be Appellant’s

to be Appellant's

mother. (I C.R. at

at 64); Johnson, 72

64); Johnson, 72 S.W.3d

S.W.3d at 349.

349. Not only that, but we have

have at

at

least six other persons whose

least whose signatures purport to

signaturespurport be that

to be that of

of Appellant’s parent,

Appellant's parent,

and various persons

and various persons listed

listed as

as Appellant’s

Appellant's parent,

parent, guardian,

guardian, or

or custodian.

custodian. (I C.R.

C.R. at

at

10;

10; 17;

17; 28;

28; 31;

31; 41;

41; 43;

43; 57-58). And whether Camilla Brown Lawrence appeared

appeared at

the

the original adjudication hearing

hearing or not, the

the signature

signature of whoever signed

signed the

the

stipulations

stipulations and

and waiver

waiver (which

(which did

did not

not waive

waive service)

service) as

as Appellant’s parent is

Appellant's parent is

wholly unlike any other signatures that might belong to

signaturesthat to Camilla Brown Lawrence.

Lawrence.

(I C.R. at 10

10 and

and 17

17 (June 14,

14, 2012 signatures);

signatures); 28;

28; 31;

31; 41;

41; 43;

43; 57-58). In short,

the

the record does

does not affirmatively

affirmatively show that Camilla Brown Lawrence is

is

Appellant’s

Appellant's mother:

mother: to

to the

the contrary,

contrary, the

the record

record contains what are,

are, at best, directly

at best,

contradictory findings by the

the trial court

court on

on this

this issue,

issue, and

and further reason

reason to

to doubt

20

20

that

that Camilla

Camilla Brown

Brown Lawrence

Lawrence is

is Appellant’s

Appellant's mother

mother since

since multiple people signed

multiple people signed

as

as his

his parent.

parent.

She

She cannot

cannot be

be Appellant’s

Appellant's guardian

guardian because

because the

the record

record does

does not contain a

a

court

court order stating

stating as

as much, nor a

a court

court order placing Appellant with her before

before she

she

summons. Tex.

served with summons.

was served Tex. Fam.

Fam. Code

Code §

§ 51.02(4)

51.02(4) (“‘Guardian’”

("'Guardian"' means

means the

the

person who, under

person under court

court order, is

is the

the guardian

guardian of the

the person

person of the

the child or

or the

the

public or

public or private

private agency whom the

agency with whom the child

child has been placed

has been by aa court.”);

placed by see

court."); see

footnote 9, supra.

9, supra. Neither does

does the

the record affirmatively

affirmatively show that she

she is

is

Appellant’s

Appellant's custodian,

custodian, as

as that

that term

term is

is defined

defined in

in the

the Family

Family Code.

Code. Tex.

Tex. Fam.

Fam. Code

Code

§§ 51.02(3) (“‘Custodian’

("'Custodian' means

means the

the adult whom the

adult with whom the child

child resides”); see

resides"); see

footnote 9,

9, supra.

supra. The record shows

shows that Appellant and Camilla Brown Lawrence

were served

served at the

the same

same address

address (both listed on the

the summons),

summons), but it does

does not

follow resided with her at the

follow that Appellant resided the time he was served. (Appendix at

he was at Tab

1,

1, 000007—000010).

000007-000010). While

While the

the Order of Probation of June

June 14,

14, 2012 places

places

Appellant

Appellant “on probation in

"on probation in the

the custody

custody of

of Camilla

Camilla Brown

Brown Lawrence

Lawrence at

at [the

[the same

same

address

address at which they were served],

served], this

this likewise is

is not a

a finding

finding that Appellant

resided with her at

resided at the

the time he was served. (I

he was (I C.R. at

at 13-14)

13-14) (reciting that Camilla

Brown

Brown Lawrence

Lawrence is

is responsible

responsible for

for supporting

supporting Appellant

Appellant “while

"while he

he resides

resides at

at [a

[a

particular address]”,

particular but failing

address]", but failing to

to find

find that this

this was his permanent residence or

his permanent or

where he

he resided he was served). The

resided when he The State’s

State's original petition alleges

original petition alleges the

the

21

21

same

same address

address for both (I C.R. at 7),

7), but it is

is well-settled that, in general, pleadings,

general,pleadings,

even

even if sworn to

to or verified,

verified, are

are not evidence. Laidlaw Waste

evidence. Laidlaw Waste Sys.

Sys. (Dallas), Inc.

Inc. v.

v.

Wilmer, 904

City of Wilmer, 904 S.W.2d

S.W.2d 656,

656, 660

660 (Tex.

(Tex. 1995)

1995) (“pleadings

("pleadings are

are not

not competent

competent

evidence, even

evidence, even if sworn

sworn or verified.”). Finally,

or verified."). Finally, even

even if the

the above were sufficient

abovewere sufficient to

to

show that Camilla Brown Lawrence,

Lawrence, whatever

whatever else

else she

she might be,

be, is

is at

at least

least

Appellant’s

Appellant's custodian,

custodian, service

service on

on her was defective

her was defective because

because the

the summons

summons with

which she

she was

was served

served was directed

directed to

to Appellant, and

and thus this

this service

service was

insufficient

insufficient to

to confer jurisdiction. Midstate Envtl. Servs., 435

confer jurisdiction. 435 S.W.3d

S.W.3d at 290;

290; Tex.

Fam.

Fam. Code

Code §

§ 51.17(a); Medeles, 923

51.17(a); Medeles, 923 S.W.2d

S.W.2d at

at 662-663; Carlson, 151

151 S.W.3d

S.W.3d at

645-646; In the

the Matter ofXB.,

Matter of X.B., 369

369 S.W.3d at 354-355. As will be

S.W.3d at be shown

shown below,

the

the record does

does not affirmatively

affirmatively show that Camilla Brown Lawrence appeared

appeared in

the

the suit, so

so it is

is as

as if she

she suffered

suffered aa default judgment.

3.

3. The record

record does

does not contain

contain aa statutory waiver of service by anyone

who

who could

could be

be Appellant’s

Appellant's mother,

mother, guardian,

guardian, or

or custodian

custodian

Neither does

does the

the record contain a

a waiver of service

service of summons

summons of the

the

original petition pursuant

pursuant to Texas

Texas Family Code

Code §

§ 53.06(e) by anyone who could

53.06(e) by

be

be Appellant’s

Appellant's mother,

mother, guardian,

guardian, or

or custodian.

custodian. That statute

statute allows aa party other

than

than aa child

child to waive service

to waive by “written

service by "written stipulation or by voluntary

or by voluntary appearance

appearance at

the

the hearing.”

hearing." Tex. Fam.

Fam. Code

Code §

§ 53.06(e)

53.06(e) (emphasis

(emphasisadded).

added).

The only summonses containing the

summonsescontaining the original petition were those

those issued

issued for

the

the original adjudication hearing

hearing in June

June 2012. (Appendix at

at Tab 1, 000001-

1, 000001—

22

22

000010).

000010). The rest

rest were for petitions to

to modify,

modify, (Appendix at

at Tab1, 000011-

Tabl, 000011—

000026),

000026), so even if validly served

so they, even served on aa proper person

person under Section

Section

53.06(a)(2), be insufficient

53.06(a)(2), would be insufficient to

to confer jurisdiction. In re

confer jurisdiction. re G.A.T.,

G.A. T., 16

16 S.W.3d

S.W.3d

at 823;

823; State

State v.

v. C.J.F.,

C.J.F., 183

183 S.W.3d

S.W.3d at

at 851.

851.

None of

None of the

the documents

documents signed by anyone

signed by purporting to

anyone purporting be Appellant’s

to be Appellant's

parent, guardian,

parent, guardian, or

or custodian

custodian are

are written stipulations of waivers of service

service of

summons of the original

summonsofthe petition. Tex. Fam.

original petition. Fam. Code

Code §

§ 53.06(e);

53.06(e); (I C.R. at

at 10;

10; 17;

17; 28;

28;

31;

31; 41;

41; 43;

43; 57-58). Neither, for that matter,

matter, are

are they

they waivers of service

service of anything

at all. (I

(I C.R. at

at 10;

10; 17;

17; 28;

28; 31;

31; 41;

41; 43;

43; 57-58). As such, they do

do not constitute

constitute

waivers of service

service by written

written stipulation. Tex. Fam.

Fam. Code

Code §

§ 53.06(e).

53.06(e). And even

even if

they

they were, none of these

these documents

documents contain findings by

by the

the court

court that whoever

these persons are

these persons who are

are who are signing

signing the

the documents

documents are

are in

in fact

fact Appellant’s

Appellant's mother,

mother,

guardian,

guardian, or

or custodian.

custodian.

Likewise, the

the record does

does not show waiver by

by voluntary appearance

appearance at the

the

hearing for

for which the summons with the original

the summons petition was

original petition was issued. The

reporter’s

reporter's record,

record, in

in fact,

fact, is

is devoid

devoid of

of the

the appearance,

appearance, or

or even presence, of

even presence, of anyone

anyone

on

on Appellant’s

Appellant's “side”

"side" except

except Appellant and

and his

his counsel. (Volumes 2-8 of the

the

Reporter’s

Reporter's Record).

Record). In particular, the

the arraignment

arraignment and plea hearing

hearing do

do not show

show

the

the appearance

appearance or presence of anyone for Appellant other than Appellant and

or presence and his

his

counsel.

counsel. (Volumes

(Volumes 2

2 and

and 3

3 of

of the

the Reporter’s

Reporter's Record).

Record).

23

23

Now, the

Now, the judgment adjudicating guilt Appellant's “mother,

guilt recites that Appellant’s "mother,

Lawrence, also

Camilla Brown Lawrence, also [was] present”. (I

[was] present". (I C.R.

C.R. at

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