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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