IS THERE AN INDEPENDENT CAUSE OF ACTION FOR TPR?

October 1, 2012 § 5 Comments

Termination of parental rights pursuant to MCA 93-15-103 has long been treated, at least in this chancery district, as an independent cause of action that may be invoked whenever the criteria of 93-15-103(3) are met.

The COA decision in LePori v. Welch (discussed here in a previous post dealing with other points), decided June 26, 2012, though, calls that theory into question.

In his opinion for the court, Judge Maxwell addresses the appellant’s argument that the chancellor failed to address the “substantial erosion” factor set out in 93-15-103(3)(f). He said, beginning in ¶5:

But the grounds for termination in section 93-15-103(3) are to be considered only when the circumstances of section 93-15-103(1) are met:

When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.

Miss. Code Ann. § 93-15-103(1).

¶6. It is clear from the plain language of section 93-15-103—as well as the cases that have applied this section—the concern of the statute is when a parent’s rights may be terminated in order for the child to be adopted. E.g., S.R.B.R. v. Harrison County Dep’t of Human Servs., 798 So. 2d 437, 445 (¶32) (Miss. 2001) … [Emphasis in original text]

The above language is not the actual holding of the case, but it is about as clear a statement that you will find interpreting the intent and purpose of 93-15-103(1), which is the threshold statute for TPR. What Judge Maxwell is saying, in my opinion, is that there is no cause of action for TPR that is independent of an adoption. TPR is done ” … in order for the child to be adopted … ,” in Judge Maxwell’s own words.

I wonder, though, what this language of the statute means in light of that interpretation: ” … and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them …” What about where the court finds that adoption is not needed to secure a stable placement? Does that cancel out the TPR action if all the criteria are proven?

My emphatic answer is … I don’t know. What I do know is that nine judges of the COA joined in Judge Maxwell’s opinion, and that one concurred ” … in part and in the result without separate written opinion,” making it 99% unanimous. So the mind of the COA on the subject would appear to be clear.

I also know that this would appear to change the way we have done business in this district, and maybe in yours, too. Stay tuned for further developments.

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§ 5 Responses to IS THERE AN INDEPENDENT CAUSE OF ACTION FOR TPR?

  • […] holding was foreshadowed to some extent by the COA’s 2012 decision in LePori v. Welch, about which I posted previously, in which Judge Maxwell pointed out that there is no cause of action for TPR unless an adoption is […]

  • Linda Peevyhouse says:

    Can a TPR be done without notifying the parents?

  • Brad says:

    This law does not make sense to me. While I admit the COA correctly notes the introductory paragraph of 93-15-103 contemplates TPRs to be for used to facilitate adoptions, there is other language in the statutes that suggests to me it was designed to be used in others situations as well. For example, Miss. Code Ann. 93-15-109 specifically provides the termination of one parent can be made without effecting the other. When would the termination of only one parents rights be done in conjunction with adoption? Also, why would the statute vest exclusive jurisdiction in the youth court for TPRs involving children in its jurisdiction when the youth court has no jurisdiction to grant an adoption?

    Seems to me it should be an independent cause of action. There are instances justifying terminating one parents rights (and thus terminating the benefits of visitation, etc.) when the child is nonetheless safe with the other parent. For example, why should a parent that has sexually abused his child be immune from a cause of action for TPR just because the other parent is capable of caring for the child?

    Am I missing something?

    • Larry says:

      There is, indeed, language in the statute that gives a way out. Also, it’s interesting that the COA in Chism v. Bright a couple of months ago affirmed a tpr under this statute with no mention of LePori.

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