Is TPR Now Extinct?
January 8, 2015 § 11 Comments
Termination of parental rights (TPR) is a statutory creature embodied in MCA 93-15-103 and the surrounding code sections.
I think it’s fair to say that most practitioners and trial court judges focus on the statutory grounds, and, if they are supported by the proof, proceed to termination.
That’s what the chancellor did in the case of Chism v. Bright, which was affirmed by the COA on May 21, 2013. The chancellor found that the Jimmy Ray Chism’s drug and alcohol addictions, abuse of drugs in the presence of the child, instability, and brushes with the law were enough to warrant termination of his parental rights with respect to his son. Jimmy petitioned for cert, which was granted by the MSSC.
In its December 11, 2014, opinion reversing the COA, the high court pointed out that there is much more to TPR than merely proving that one or more of the statutory grounds exist. Justice Lamar, for a unanimous court, laid it out this way:
¶13. Parents have a “fundamental liberty interest . . . in the care, custody, and management of their child” that cannot be taken away without clear and convincing evidence of the required statutory grounds for termination of parental rights. Santosky v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see also J. Jackson and M. Miller, Encyclopedia of Mississippi Law § 78:39 (2002) (citing Miss. Code Ann. § 93-15-103(3)). State statutes providing for the termination of parental rights are subject to strict scrutiny and “[c]ourts may not add to the enumerated grounds.” Deborah H. Bell, Bell on Mississippi Family Law 409 (2005) (citing Gunter v. Gray, 876 So. 2d 315 (Miss. 2004)); see also Rias v. Henderson, 342 So. 2d 737, 739 (Miss. 1977) (holding that statutes affecting fundamental constitutional rights are subject to strict scrutiny).
¶14. This Court has stated that “[b]ecause parental rights are so important,” the “circumstances under which [those rights] can be terminated by the government” are “sharply limit[ed.]” Gunter v. Gray, 876 So. 2d at 317. Title 93, Chapter 15 of the Mississippi Code sets out the requirements and procedure for the termination of parental rights. See Miss. Code Ann. §§ 93-15-101 through 93-15-111 (Rev. 2013).
¶15. As mentioned above, the chancellor found that Jim’s parental rights should be terminated because he exhibited “ongoing behavior which would make it impossible to return the minor child to his care and custody because he has a diagnosable condition, specifically alcohol and drug addiction, unlikely to change within a reasonable time which makes him unable to assume minimally, acceptable care of the child . . . .” But neither the chancellor nor the Court of Appeals addressed subsection (1) of Section 93-15-103, which sets out three prerequisites that must be met before the court may invoke any specific ground for termination. Section 93-15-103(1) states:
(1) 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) (Rev. 2013) (emphasis added). See also In Re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 428 (Miss. 2009). This Court previously has categorized the three prerequisites in subsection (1) as follows: (1) the 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 or the parent is unable or unwilling to care for the child; (2) relatives are not appropriate or are unavailable; and (3) adoption is in the best interest of the child. Leverock, 23 So. 3d at 428 (emphasis added).
¶16. Here, it is undisputed that Johnny was not “removed from the home of his natural parents.” And we also do not find from this record that Jim is “unable or unwilling” to care for Johnny. First, the chancellor’s finding that Jim was “unable to assume minimally acceptable care” [Fn 6] of Johnny is belied by the fact that he also allowed Jim to have contact with Johnny after he is sober for six months. Neither Abby nor anyone else objects to this. Simply because Jim might not be the best choice to be Johnny’s full-time custodial parent certainly does not mean that he is “unable to care” for Johnny. This Court “has never allowed termination of parental rights only because others may be better parents.” W.A.S., 949 So. 2d at 35. Second, it is undisputed that Jim wants to be a part of Johnny’s life and that they have a very loving relationship, which evidences that Jim is not unwilling to care for him.
[Fn 6] To be clear, the chancellor was analyzing under Section 93-15-103(3), instead of under Section 93-15-103(1).
¶17. Moreover, we affirm the overarching premise that termination of parental rights is a last resort. This intent is evidenced by the Legislature in Section 93-15-103(4), which states:
Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.
Miss. Code Ann. § 93-15-103(4) (Rev. 2013) (emphasis added). In short, Abby has not proven the statutory prerequisites found in Section 93-15-103(1) that must be met. As such, we decline to address the specific ground for termination analyzed by the chancellor, or whether termination is in Johnny’s best interest. For these reasons, we reverse the termination order and remand this case to the Union County Chancery Court for further proceedings consistent with this opinion.
So there you have it. If you have pending or contemplate filing a TPR action, you need to backtrack and see whether your case satisfies the three prerequisites. Without all three, you fail.
A few thoughts:
- ” … removed from the home of his natural parents …” by whom? I would presume DHS, which makes this section inapplicable in most chancery cases. If the section is not limited to DHS removal, did the chancellor not in effect order that the child be removed from Jimmy’s home? Or does the strict construction of the statute require that the child be removed from the home of both parents before it can be invoked? That’s what it says.
- Our child custody and support statutes are littered with amendments made to accommodate DHS practices, with resulting confusion. I am not familiar with the legislative history of the TPR statutes, but that could be the source of the convoluted language of section 103. Or, it could be that the legislature actually intended to make TPR well-nigh impossible. If that is what they intended, then the statute is well-crafted.
- This 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 contemplated.
- I think this effectively puts an end to most TPR cases in chancery court, save for those in which TPR is sought as a precursor to adoption. If you see it differently, I would like you to comment with some persuasive argument to the contrary.
The Better Chancery Practice Blog 
[…] a stand-alone statute that allowed for TPR without adoption (although that was proven not true in Chism v. Bright), and the other was part of the adoption […]
[…] You will recall that this revision in the law of TPR was made necessary by the MSSC’s decision in the May 21, 2013, case of Chism v. Bright, which in effect ruled that the old statute could not be used in a private (non-DHS) TPR case. A post on the case is here. […]
[…] to address DHS concerns, but as a result became inoperable between private parties as a result, as pointed out in this post on the MSSC’s decision in Chism v. Bright. It would be great if some commission could study these statutes, clarify them, distinguish between […]
So, if I read this correctly, if DHS removes a child from a home where the parent has been deemed unfit and the parent(s) will not correct this deficiency or its against the child’s best interest in returning the child, TPR is not ripe until someone has been identified to adopt the child? TPR in anticipation of adoption is no longer an option?
TPR under 93-15-103 requires a court finding that “adoption is in the best interest of the child,” but the case law does not require that an adoption actually have been filed. TPR in anticipation of adoption in DHS cases is most definitely an option, since in most DHS cases the statutory prerequisites in 93-15-103 have been satisfied. The problem identified in the post is with private-party TPR — between parents, for example — because those prerequisites simply don’t apply in private-party cases.
[…] first shot was fired in Chism v. Bright, about which we previously posted here. Chism is the MSSC case that interpreted MCA 93-15-103 to require that the statutory prerequisites […]
[…] talked here earlier in the year about the MSSC’s December 11, 2014, ruling in Chism v. Bright that held, in essence, that until the statutory prerequisites are met, the chancellor may not […]
Judge Primeaux,
I am deeply disturbed by this ruling, mainly pursuant to 93-15-103(3) subsections (c) and (g). I take this ruling to mean a TPR pursuant to 93-15-103 could not be possible for a natural parent against a child molester or abusive natural parent. Adoption is hardly ever contemplated when one of these two incidents occur, and now has the Supreme Court told us that we have to leave the parental rights of a sexual predator or an abusive parent intact, until someone contemplates adoption? Do you think they could have held, instead, the key language “‘natural parents’, which contemplates removal from both parents, is a condition precedent to the triggering of 93-15-103(1), and therefore making 93-15-103(1) inapplicable in situations where the child has only been or will be removed from one parent”? The statute is definitely problematic, and should be rewritten, there is no doubt in my mind about that, but I would appreciate if the Supreme Court would take a look at what has effectively been done by this ruling, and see the horror that may ensue.
I am not usually one to be opinionated on most legal issues, that is why I have never chimed in before now. I am typically good about seeing the grey, but when children are involved, I cannot help myself.
I hold your opinion in high regard. Thanks
-Faithful Blog Reader
I think your concerns are on target. I don’t know whether a petition or rehearing has been filed. If so, maybe the court will take another look, but I don’t think that will happen. I guess the MSSC was saying to the legislature that they need to fix the statute if they want to allow a free-standing TPR.
Judge Primeaux:
I have no problem terminating the parental rights of a parent who has abandoned the responsibilities of parenting for so long that their children don’t even know who they are.
I think that’s the intent of the TPR statute, but now the case law says we still have to find all of the prerequisites first. Stay tuned.