June 6, 2011 § Leave a comment

In the COA case of Wells v. Smith, decided May 31, 2011, the appellate court was again confronted with a painful reality that chancellors are seeing more and more frequently:  the situation where a child is raised by the grandparents because one or both of the natural parents has chosen to be absent from the child’s life, and the natural parent awakens one day to assert his or her parental rights.

In this most recent case, Tara Wells had given birth to a son, Jason, out of wedlock in 2003.  Robert Johnson was Jason’s natural father.  Tara and Jason lived with her mother, Sarah Smith, and her husband, William, for a time after the birth while she attended college.  Tara’s college education spanned three years, and her time spent with Jason tapered off the longer she was in school.  In April, 2006, Tara and Robert were married, and they moved to Washington, DC, where Robert was stationed with the military.  Tara took Jason with her to live in DC, but returned him to live with the Smiths a short time later.  After three months of marriage, Tara and Robert separated.  Tara stayed in the DC area and Jason split time between there and Mississippi until November, 2006, when he returned to Mississippi for good.

In May, 2007, Tara signed over medical guardianship of Jason to the Smiths.  Tara’s contact with Jason grew less and less.  She allowed Jason to live with the Smiths, never asking to take him to live with her.  In the meantime, Robert Johnson had been incarcerated in Virginia.  In June, 2008, the Smiths filed pleadings in Mississippi seeking permanent custody of Jason.  On October 1, 2008, they filed a petition for adoption and termination of Tara’s and Robert’s parental rights.

In December, 2008, Tara began living with another man, Neil Baker, and they were engaged in March, 2009, despite the fact that Tara was still married to Robert Johnson.  Tara and Neil moved to Arizona.  She was financially dependent on Neil, and he had never met Jason.

Also in December, 2008, Robert Johnson joined in the Smiths’ pleading for custody and consented to their being granted custody; he also consented to and joined in the petition for adoption.

In April, 2009, the court appointed a GAL.  The GAL report recommended that the child stay with the Smiths.  The GAL report, as well as the weight of proof at trial, established that the Smiths were the only mother and father Jason had ever known, and that their home was the only home he had ever had.

The chancellor relied on the doctrine of in loco parentis, in part on the GAL’s recommendation, to overcome the natural parent presumption and to find, applying the Albright factors, that Jason’s best interest would best be served by staying with the Smiths rather than his mother.

On appeal, the court analogized the case to the recent supreme court decision in Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), in which the court reversed and remanded for the chancellor to determine whether the father had relinquished the natural-parent presumption for reasons other than forfeiture by agreeing to a temporary custody order.  The supreme court did not want to extend Grant v. Martin, 757 So.2d 264, 266 (Miss. 2000), which held that a parent’s agreement to a guardianship or custody judgment in a third party does create a forfeiture of the natural-parent presumption, to temporary orders, and wanted the chancellor to evaluate the proof to determine whether there was some other basis upon which to proceed.

The Vaughn decision pointed out the case of In re Leverock, 23 So.3d 424 (Miss. 2009), in which the natural father was found to have deserted his child by avoiding his moral and legal duties and parental obligations for in excess of two years.

The COA said in Wells:

“Although Vaughn was a case where the chancery court improperly found relinquishment of the natural-parent presumption due to the signing of a temporary custody order, it is analogous to this case. Here, the chancellor improperly relied on the doctrine of in loco parentis to find that the natural-parent presumption had been relinquished. We have been able to find no precedent for using that doctrine to overcome the natural-parent presumption. However, given the similarity of the facts in this case to Leverock and Vaughn, this case should be remanded to the chancery court to determine whether Tara deserted Jason, thus relinquishing her right to the natural-parent presumption. On remand, the chancery court should consider Jason’s circumstances at the time of remand.”  [Emphasis added]

As in Davis, then, the Wells court directed the chancellor to find a basis other than the one he originally asserted as a basis to accomplish the best interest of the child.  In Wells, the rejected basis was in loco parentis.  I would guess that the definition of desertion to be applied by the trial judge will be MCA § 93-15-103(3).

The bottom line is that if you’re still barking up the in loco parentis tree, you are barking up the wrong tree.  It simply won’t form the basis to overcome the presumption in favor of the natural parent.  You’ll have to find another way to go in these very difficult, gut-wrenching cases.

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