In Loco Parentis Child is not a Wrongful Death Beneficiary

January 30, 2014 § Leave a comment

The MSSC ruled last week that the child of an in loco parentis parent is not a wrongful death beneficiary under our statute.

The outcome would seem to be preordained, given that wrongful death is entirely a creature of statute, which must be strictly construed. Justice Randolph, writing for the majority in Estate of Smith v. Smith, handed down January 23, 2014, summed it up: 

¶9. This Court has recognized the doctrine of in loco parentis for more than a century. Fortinberry v. Holmes, 42 So. 799, 799 (Miss. 1907). Specifically, the doctrine is defined as follows:

A person in loco parentis may be defined as one who has assumed the status and obligations of a parent without a formal adoption. The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent. Whether the relationship exists is a matter of intention and of fact to be deduced from the circumstances of the particular case.

Farve v. Medders, 128 So. 2d 877, 879 (Miss. 1961).

¶10. In short, Halley is not a wrongful-death beneficiary because she is not Justin’s child, as defined in Mississippi Code Section 11-7-13. See Miss. Code Ann. § 11-7-13 (Rev. 2004). We strictly construe Section 11-7-13. Smith v. Garrett, 287 So. 2d 258, 260 (Miss. 1973). Moreover, this Court lacks the power to expand the definition of “child.” See Burley v. Douglas, 26 So. 3d 1013, 1020 (Miss. 2009). The relevant part of the statute is as follows:

. . . Damages for the injury and death of a married man shall be equally distributed to his wife and children . . . . The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15. [Citation omitted]

 . . . Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full-blood and had been born to the adopting parents in lawful wedlock.

Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added). In addition to covering natural children, the statute includes express language that brings both adopted children and illegitimate children within the purview of “children.” The statute is silent as to in loco children. Since this Court must strictly construe the statute, we find that in loco children do not fall within the definition of children in Mississippi’s wrongful-death statute.

Justice Kitchens wrote an interesting dissent that would have reversed not based on the father’s status in loco parentis, but rather on the fact that the deceased father was not only the presumed father, but also that there had been “several separate judicial proceedings in which [he] had been recognized as Halley’s legal father,” and there had never been any judicial or extra-juducial disestablishment of parentage. ¶ 21 (emphasis in original).   

This is another of those cases where a reader who is unacquainted with the case is left scratching his or her head over two apparently completely different readings and/or interpretations of what is in the record. If Justice Kitchens is right in his reading of the record, is Hallie not a wrongful-death beneficiary?

I have no quarrel with the majority’s application of the law to its statement of the facts, but I do wonder nowadays whether the 1907 language of Fortinberry is now hopelessly antiquated. In light of the third-party custody cases and, now, this case, can it be said accurately any more, a là Fortinberry, that “The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent”?

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