TPR: It Takes More than Non-Payment of Support

September 24, 2014 § 2 Comments

The COA decision in Fuller v. Weidner, decided September 16, 2014, is a reminder of a couple of basic concepts in termination of parental rights (TPR) cases.

James Fuller and Rachel Weidner had a non-marital relationship out of which was born Remmy Fuller on February 13, 2009.

James and Rachel’s association was punctuated with domestic-violence and protective-order actions, and on April 14, 2010, James was ordered to have “no contact involving the child until chancery court establishes custody.”

On April 27, 2010, the chancery court entered a child support order in a DHS case it filed against James, including an assessment of past-due support.

In May, 2012, Rachel filed a TPR action against James. A GAL was appointed per the statute, and when the case finally reached trial in April, 2013, the chancellor found that James had abandoned Remmy, and terminated James’s parental rights. James appealed, arguing that the chancellor misapplied the law and erred in finding that he had abandoned his daughter.

The COA affirmed. Here is the pertinent part of Judge Lee’s opinion:

¶7. Fuller acknowledges his two issues are intertwined and addresses both together. So do we. Mississippi Code Annotated section 93-15-103 (Rev. 2013) lists several grounds for the termination of parental rights. Sections 93-15-103(3)(b) and (f) allow for the termination of parental rights if:

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or

. . . .

(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .

In this instance, the chancellor determined that Fuller had not contacted Remmy “for more than the six (6) months mandated by statute.” Fuller contends the chancellor misapplied the law because Remmy was three at the time Weidner filed the termination action; thus, the applicable time period should have been one year. However, the chancellor specifically found Fuller had not seen Remmy since April 2010, and had not attempted to establish any visitation with her. At the time of the hearing in April 2013, Fuller had not seen his daughter in three years.

¶8. Fuller admits he has not seen Remmy since April 2010, but states he was under the mistaken belief that he was not allowed to contact her until the chancery court established custody as required by the restraining order. Fuller acknowledges he did try to contact Weidner after the restraining order had expired but was unable to reach her and did not attempt to contact her directly again, even though he knew where Weidner and Remmy were living.

¶9. The chancellor further determined that Fuller had failed to pay any child support for approximately two years, and only began to pay once Weidner filed her termination action. We do recognize that “[f]ailure to pay child support without more is insufficient predicate for a finding of abandonment.” Carter v. Taylor, 611 So. 2d 874, 877 (Miss. 1992). We reiterate that at the time Weidner filed the termination action, Fuller had not seen Remmy in two years nor made any serious efforts to do so. “A finding of substantial erosion of the parent/child relationship necessarily involves a consideration of the relationship as it existed when the termination proceedings were initiated.” G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 338 (¶29) (Miss. 2000). A substantial erosion can be proved by showing a prolonged absence and lack of communication between the parent and the child. Ainsworth v. Natural Father, 414 So. 2d 417, 420 (Miss. 1982). In a similar case, this Court affirmed the chancellor’s decision to terminate a father’s parental rights since the father had admittedly not seen his child in two years and only started paying child support after the termination action was filed. R.L. v. G.F., 973 So. 2d 322, 324-25 (¶¶8-10) (Miss. Ct. App. 2008).

A couple of points from a fairly clear-cut case:

  • Whichever side of the case you’re on, in my experience failure to have contact within the statutory time without serious mitigating factors is pretty much a slam-dunk when it comes to TPR.
  • Failure to support is more of an aggravating circumstance that lends weight to the termination action, but, as the case cite says, it does not warrant TPR in and of itself.

If James had been serious about seeing and contacting his daughter, there are numerous ways that he could have documented his efforts and created substantiating testimony. The inescapable conclusion he left both the chancellor and the COA was that he had really made no effort because he had no proof other than his naked assertions.

If a James comes to your office complaining that he has had trouble contacting and visiting with his baby, advise him of the TPR law and help him document his efforts. Then file an action to establish or enforce his visitation rights. The sooner the better. Oh, and be sure to tell him that a dad who isn’t paying child support gets little or no sympathy from the chancellor.

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§ 2 Responses to TPR: It Takes More than Non-Payment of Support

  • Bill Featherston says:

    I recently tried a TPR case and the GAL cited the case of LePori v. Welch, 93 So. 3d 66 ( COA 2012) which created an issue of whether or not there is an independent cause of action for TPR independent of an adoption proceeding. Does this case resolve that issue?

    • Larry says:

      Since LePori there have been several cases, I believe, where the action in the trial court was an independent (or “stand-alone”) action. An atty asked me a few days ago whether I believed we had a TPR action separate and apart from adoption. I handed him this decision and told him here is a decision that affirms a stand-alone action without mentioning the rationale in LePori. So, in my opinion, based on the statutory scheme and the body of case law, LePori is an outlier on that point … as of now.

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