A Second Look at the TPR Prerequisites

March 24, 2015 § 2 Comments

We 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 proceed to examine whether the statutory grounds have been met.

Here’s what the court said:

¶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).

The Supreme Court concluded that, since the child had not been removed from Jimmy Chism’s home as provided in prerequisite 1, it was improper for the chancellor to proceed to consider the grounds.

But are there only three prerequisites, or are there really three with one having an alternative? Notice that it is the supreme court that numerically categorized the prerequisite section, not the legislature. TPR is purely a creature of statute. The rules of statutory construction require that we give effect to every provision and try to harmonize language that may appear not to fit. Here’s how I would read section 103(1):

1. (a) 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

(b) the parent is unable or unwilling to care for the child,

2. relatives are not appropriate or are unavailable,

3. 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.

The court actually addressed 1(b) in its opinion at ¶ 16, finding that Jimmy had not been proven to have been unable or unwilling g to care for the child.

So to the extent that I rang the alarm bell over the impending doom of our TPR statute, I unring that bell for now, subject to how the courts will apply this statute in the wake of Chism. There was a recent case that did address it, which I will talk about here tomorrow.

For now, though, I wish the court would clarify that there is an alternative in prerequisite 1 — abandonment — that is actually the most common and customary basis for TPR.

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