June | 2015 | The Better Chancery Practice Blog

The Courthouses of Mississippi

June 12, 2015 § 1 Comment

I can still use yours.

Lowndes – Josh Clemons

Benton (Historical) – Beverly Kraft

Benton – Beverly Kraft

Chickasaw at Houston – Grant Fox

Chickasaw at Okolona – Beverly Kraft

Leake – Richard Young

Wayne – Kathy Wilkinson

Monroe Chancery – Craig Brasfield

Ittawamba – Beverly Kraft

Carroll at Vaiden – Maggie Ferguson

A Procedural Peculiarity

June 11, 2015 § Leave a comment

We’ve talked here many times about the R54(b) principle that, if the judgment disposes of fewer than all of the issues, it is not a final, appealable judgment unless the judge certifies so in the manner prescribed by the rule. We’ve sounded that theme so often that I’m not going to add links in this post. You can search them for yourself, if you care to.

It’s that principle that has me scratching my head over the COA case Wood, et al. v. Miller, decided June 2, 2015.

Donna Smith and Audrey Kemp filed a complaint in chancery court in 2004 to quiet and confirm title, to determine heirship, and to partition some 261 acres of land that had descended via heirship and devise to the parties named in the suit. They filed an amended complaint in 2007.

Following a hearing in 2009, the chancellor entered a judgment quieting and confirming title and ordering partition. The commissioners some time in 2010 filed a report detailing how the property could be divided into three shares.

In October, 2010, the defendants filed a separate pleading in the same civil action seeking to obtain title of all the property by adverse possession. The pleading was not styled as a counterclaim.

In May, 2012, the chancellor entered a judgment confirming the commissioners’ report, and ordered that the petitioners would have one share, the respondents another share, and another group of heirs the third share.

Afterward the plaintiffs filed a pleading asking for a judgment for waste based on the defendants’ refusal to allow the land to be rented during the litigation. At the hearing on that pleading, the question arose about the pending adverse-possession claim that had never been addressed. The attorney for the defendants announced that he would schedule a hearing on the matter at a later date. He never did. The chancellor entered judgment against the defendants for waste for more than $90,000.

The defendants appealed, raising only two issues: (1) that the chancellor erred when she ruled that two of the petitioners had inherited Thornton Miller’s interest in the property through the will of Thornton’s widow, Magnolia; and (2) that they had adversely possessed the property. They did not otherwise contest the heirship determination, the partition, or the judgment for waste. It does not appear from the opinion that they raised any issue as to the original judgment quieting and confirming title.

In its opinion, the COA, by Judge Roberts, pointed out, quite accurately, that any issue of invalidity of Magnolia’s will had not been raised before the chancellor; nor could it, because MCA 91-7-23 requires such claims be brought within two years of probate of the contested will, and not later. Magnolia’s will had been probated in 1986, so the claim as to the will’s invalidity was untimely and barred by the statute. On those grounds, then, the COA refused to review the issue on appeal.

This was unquestionably the right conclusion as to issue (1).

As for the adverse possession claim, issue (2), the court concluded that, since it had never been presented to the chancellor for review, the issue was not properly before it, and refused to entertain this issue also.

With this issue, I have this question: since the judgment of the trial court disposed of fewer than all of the issues, should the COA have accepted jurisdiction over the appeal in the first place? R54(b) provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Since the adverse possession issue is still pending as a claim in this case, was there a final, appealable judgment, or should the COA have rejected jurisdiction? Well, no matter, I think that the COA reached the proper conclusion because:

You can not adversely possess against co-owners. The determination of heirship resolved the issue of Magnolia’s bequest and ownership, making all of the parties co-owners. Even if the matter had been properly presented at hearing to the chancellor, it did not state a claim upon which relief could be granted.
Any adverse possession claim should have been presented as a compulsory counterclaim to the claim to quiet and confirm, per R13. The reason for the rule is to prevent the very thing that was attempted in this case.
The chancery court’s order quieting and confirming disposed of any adverse possession claims.
This matter was pending in the trial court for nine years. If you haven’t demanded a hearing on your claims you should not have the right to ask or demand that the court deal with it later. You’re already late enough.

In other words, the outcome would not have changed. Just to be clear … I agree with the court’s ruling in this case. I just thought it presented a peculiar set of issues and procedures that would be of some interest.

Who Pays the GAL?

June 10, 2015 § 1 Comment

The COA’s decision in Smith v. Wright, handed down April 7, 2015, includes this brief quote from the case of MDHS v. Murr, 797 So.2d 818, 821 (¶9) (Miss. 2000):

“Our rules of procedure treat guardian ad litem fees as court costs to be awarded against the non-prevailing party.”

Put in those terms, that would appear to be a pretty inflexible rule. In my experience, though, chancellors often apportion the fees between the parties. Several good reasons for apportionment come to mind:

Often the non-prevailing party is drug-addicted or otherwise impaired in his or her ability to pay, and it’s inequitable to saddle that party with all of the cost (as you see in Murr, below).
It’s also inequitable to the GAL to assign the cost to a person without ability to pay. Judges want, and the judicial system needs, to have GAL’s paid. We don’t need people refusing appointments because they’re tired of working for free.
Doesn’t the above rule give the appearance that the GAL might want to tilt the recommendations of the report against the party with the ability to pay?
Appointment of a GAL is done always for the benefit of a child, not as some kind of financially punitive measure to be slapped against a party.

Here is the entirety of what the MSSC said on the law of the subject in its opinion in Murr:

¶ 9. Our rules of procedure treat guardian ad litem fees as court costs to be awarded against the non-prevailing party. Miss. R. Civ. P. 17(d); S.C.R. v. F.W.K., 748 So.2d 693 (Miss.1999) (not an abuse of discretion to tax non-prevailing party with costs including guardian ad litem fees); Lowrey v. Forrest County Bd. of Supervisors, 559 So.2d 1029 (Miss.1990); In re Newsom, 536 So.2d 1 (Miss.1988). There is no doubt that our civil rules prescribe that a guardian ad litem be compensated for his or her efforts, and that the monies so ordered be taxed as court costs. Miss. R. Civ. P. 17(d) provides, in relevant part, that

In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for his service rendered in such cause, to be taxed as a part of the cost in such action. Newsom, 536 So.2d at 2.

Neither Smith nor Murr mentioned MRCP 54(d), however, which reads in part this way:

Except when express provision thereof is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs … [Emphasis added]

Seen in light of R54(d), the prevailing-party rule, then, does not appear as inflexible as these cases have applied it. The trial court specifically is given the discretion to direct otherwise than the prevailing-party rule. Of course, discretion is always reviewable by the appellate courts for abuse of that discretion. The chancellor who “otherwise directs” per R54(d) would be prudent to spell out all of the criteria that she relied on in deviating from the prevailing-party rule.

It would not seem to me to be an abuse of discretion to allocate the cost of the GAL based on ability to pay, taking into account some of the points set out above. For one thing, the prevailing party has gotten the positive benefit of the report, and that should be worth something. For another, the chancellor is in the best position to weigh all of the equities at work in the case and to make the allocation equitably.

Pro Se Times Five

June 9, 2015 § 5 Comments

Every now and then one of those tv commentators with a big head, staring all-knowingly into the eye of the camera, will pontificate that members of my generation believe — somewhat arrogantly, they say — that we can do anything.

I take issue with that. I know, for example, that I would not be a very successful brain surgeon, what with my less-than-steady hands and absolute ignorance of surgical techniques, not to mention minimal understanding of brain and skull structure. Of course my lack of success in that field would make me a spectacularly successful defendant — from the perspective of plaintiffs.

You would probably agree with me, as would most rational people, that it is singularly ill-advised for laypeople to attempt brain surgery on someone else, or even themselves.

Brain surgery requires a high degree of education, smarts, and practice. As does the law.

Why, then, do ordinarily sensible people — who would not dream of doing brain surgery, and who have had the wherewithal to reach adulthood without blowing themselves up or being devoured by wild beasts or falling into any similar calamity — insist on representing themselves in litigation and — horrors — on appeal?

That’s what happened in the case of Estate of Forrest: Forrest v. Forrest, decided June 2, 2015, by the COA. In that case, Diane Forrest had a falling-out with the sons of her deceased husband over assets and expenses of the estate. When Diane filed a petition to close the estate, the sons showed up at the hearing, ready to do battle. But the chancellor, in solomonic fashion, conferred with the parties and announced that they had reached a settlement agreeable to all. The COA opinion by Judge Ishee describes what happened next:

¶5. After reading the agreement into the record, the chancellor asked the parties if they understood and assented to the agreement as dictated into the record. All parties responded affirmatively. Diane then filed this appeal.

Pro se, I might add.

Diane’s appeal was doomed because Diane’s attorney (herself) apparently did not grasp the fundamental concept that an appeal involves legal argument. Judge Ishee explicated:

¶7. Diane filed her appellant’s brief pro se. In her brief, Diane failed to cite any authority in support of her claims. Pursuant to Mississippi Rule of Appellate Procedure 28(a)(6), an appellant’s brief must “contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” It is well settled under Mississippi caselaw that “failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment.” Norwood v. Miss. Dep’t of Emp’t Sec., 105 So. 3d 408, 410 (¶5) (Miss. Ct. App. 2012) (citation omitted).

¶8. Although Diane has chosen to appeal this matter without the assistance of counsel, the Mississippi Supreme Court has consistently held that “[a] pro se litigant shall be held to the same standard as an attorney.” Bailey v. Wheatley Estates Corp., 829 So. 2d 1278, 1281 (¶11) (Miss. Ct. App. 2002). As such, we decline to address Diane’s assignments of error because she failed to cite any authority in her briefs.

Actually, Diane’s failure to cite any authority is probably indicative of the fact that there is no authority that would support reversing the chancellor in this case. Diane made her deal, affirmed her agreement in open court, and then tried to renege via appeal. That’s not a formula for success.

Oh, and did I mention that all four of the sons, who were appellees, are listed as pro se also? So were they better lawyers than Diane because they won? Not necessarily. Their one defensive ploy was to move to strike Diane’s brief because it was filed too late. The COA dismissed that issue as mooted out by the larger and much more obvious issue of failure to cite any authority.

I know what you’re probably thinking: “it’s obvious that they were pro se because they did not want to pay lawyers.” I get that. I know that lawyers, particularly in bulk, can be expensive. But that’s sort of beside the point. The point is that a pro se appeal is about as futile as doing brain surgery on oneself — and about as messy and painful.

Rule 5.1 Suspended

June 8, 2015 § 2 Comments

The MSSC suspended operation of MRCP 5.1 last Thursday. Here’s the text of the order:

This matter is before the en bane Court on the Court’s own motion.

On April 28, 2015, we entered an order amending the Mississippi Rules of Civil Procedure to add Rule 5 .1. The amendment became effective that same date.

After due consideration, however, we find that the April 28 order should be vacated and that Rule 5 .1 should be suspended until further order from this Court. We further find that Rule 5.1 should be struck from the rules published on the Court’s website and omitted
from the next edition of the Mississippi Rules of Court

IT IS THEREFORE ORDERED that the April 28 order adopting Rule 5 .1 is vacated, and Rule 5 .1 is suspended until further order from this Court. Rule 5 .1 shall also be struck from the rules published on the Court’s website and omitted from the next edition of the
Mississippi Rules of Court.

SO ORDERED, this the 4th day of June, 2015.

That should alleviate for now some of the anxiety among chancellors and lawyers who have been scratching their heads over how to implement the new rule in cases involving child support, custody, and myriad other types of cases involving children in counties still using paper filings.

Remember, however, that confidentiality requirements similar to 5.1 are still in effect in MEC jurisdictions.

“Quote Unquote”

June 5, 2015 § Leave a comment

“There is no true justice unless mercy is part of it.” — The Zohar

“We need to forgive and be forgiven every day, every hour increasingly. That is the great work of love among the fellowship of the weak that is the human family.” — Henri J.M. Nouwen

“If we had no faults of our own, we should not take so much pleasure in noticing those in others and judging their lives as either black or white, good or bad. We live all our lives in shades of gray.” — Shannon L. Alder

Tacking Adverse Possession

June 4, 2015 § 3 Comments

The case of Rester and Davis v. Greenleaf Resources, Inc., handed down by the COA April 7, 2015, is instructive for an aspect of adverse possession that can be overlooked.

In that case, the chancellor had ruled that Sylvia Rester and L.B. Davis had failed to meet their burden to prove the elements of adverse possession of some 19.5 acres of land by clear and convincing evidence. The COA held that the chancellor did correctly apply the law to the facts of the case, but erred by considering only the period of time when the property was owned by Greenleaf. The COA opinion, by Judge Irving, states:

¶16. After reviewing the record, we find that the trial court correctly considered the elements of adverse possession; however, it erred because it only focused on the period of time Greenleaf held title to the land. Specifically, the trial court erred when it held that “Greenleaf would have no way of knowing the Plaintiffs claimed ownership.” We point out that Greenleaf did not hold title to the land until 2004, when it purchased the land from the Crosbys. Further inquiry is crucial in determining whether the Davis family adversely possessed the disputed property at any point prior to Greenleaf’s purchase of the land.

¶17. There are several ten-year spans of time, an element of adverse possession, that need to be considered, which the trial court’s findings are silent on. Such a span begins with L.B.’s birth on the disputed property. There is testimony that the family maintained control by renting out the log cabin in their absence for a period of time. In addition, there was testimony that L.B. had worked on the fence in 1939. There is uncontradicted testimony from Herbert, who managed the property for over twenty years, that the property was on a squatters list, and that there were painted lines that were not crossed. In addition, he recalled that there was a fence, and that crops had been planted on the disputed property. Herbert’s testimony is corroborated by L.B.’s testimony. James also testified to seeing the painted lines, which Herbert described and stated he did not cross in light of the fact that the land was on the squatters list. Several other witnesses testified about crops being grown by the Davises on the disputed property and the Davises’ recreational use of the land.

¶18. We find that there was sufficient evidence produced to warrant further inquiry for the period of time prior to Greenleaf’s purchase of the disputed land. If at any point, the Davises had adversely possessed the property prior to Greenleaf’s purchase, it follows that the title that Greenleaf received could not include the disputed property, notwithstanding the fact that it may lie within the calls of its deed. To be clear, nothing in this opinion should be interpreted as holding or finding that the evidence is sufficient or insufficient to show that the Davises adversely possessed the property prior to the point in time when Greenleaf purchased it. We simply hold that the trial court erred in limiting its focus to the period of time after the date of Greenleaf’s purchase.

This holding is dictated by MCA 15-1-13(1), which sets out the period of adverse possession, and reads, in part:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title …

In other words: (A) any person or persons in the preceding chain of title who achieved adverse possession passes good title to the subsequent title holders; and (B) where there is privity between a party and his predecessor in title, the party is entitled to “tack” his possession to his predecessor’s so as to have ten years’ possession, despite the fact that the party has not himself been in possession ten years. Ricketts v. Simmons, 44 So.2d 537, 538 (Miss. 1950). Either situation requires the court to look at the facts of the predecessors in title, which means that it is incumbent on counsel to develop that proof at trial as was done in the trial of the Rester case. If you don’t put it in the record, the court can not consider it, and you can not prevail on appeal.

A Heartfelt Plea

June 3, 2015 § 10 Comments

I don’t usually share my personal correspondence with others, but since most of you are regular readers, I felt that it would be of some benefit to you to read this emotional email I received last week:

Dear Beloved

I write to you in good faith and hoping that you will understand the importance of my email. My decision to contact you is because I have been recently diagnosed with Cancer and the doctor said I have less than 6 weeks to live.

Since this sudden news was announced to me, I have been reflecting over my life in the past. It is painful that after over 24 years of peaceful marriage with my late husband, we had no child of our own that will inherit our numerous wealth. In the past, I have made reasonable donations to the victims of Earthquake in Haiti and recently to the same victims in Japan and Thailand. Now that my health is gradually deteriorating, I cannot continue to do all these by myself any more.

Because I have no relation, me and my husband grow up as orphans in Orphanage homes that is why I am making everything possible to make sure half of my funds go to Orphanage homes hence I can no more handle this Charity I please that you should complete this program once you receive the Funds which was deposited in Freedom Security Bank, take half of the total funds for yourself and use the half for charity and also build Charity Foundation.

I strongly desire to reach out to the poor and needy people, but I would prefer to continue this with the assistance of a kind person. I want you to answer the following questions, (1) If I donate (32.5) Thirty Tow Million five Hundred Thousand United States Dollars to you, which is all I have in this world can you be able to utilize it wisely to achieve my heart desire of supporting poor people around you? (3)Will you open a charity foundation in the name of Me and my late husband and Please reply me as soon as possible.

If you are ready get back to me with the below details.

1 your full name

2 your country name

3 your Telephone number

4 your Present Occupation

Yours Faithfully.

Mrs Ann Williams

Doesn’t that just tear at your heart?

Now, I don’t have anything against orphanages or Orphanage homes or trusts or rich people who can’t figure out how to spend their millions, but I think I’ll pass on Ms. Williams’s proposition for several reasons.

For one thing, I do not know Ms. Williams. For another, anyone who addresses me as “beloved” at one end of her correspondence and then has to ask my “full name,” country name, and occupation … well, that just kind of confuses my emotions. Her incoherent rambling does not reassure me. Oh, and this is transparently and patently a scam.

I get one or two emails like this every month. I am sure you do as well. I always think to myself “Who would be crazy enough to fall for something like this?” and then I remember that a wealthy Meridianite some years ago lost nearly $50,000 in a similar scam. He was a prominent businessman who should have known better — and didn’t need the money that was dangled before his nose — and just got greedy at the idea of money for nothing.

So, “dear beloved” readers, I encourage you to trash these easy-money emails before you, too, get burned.

Who’s to Blame?

June 2, 2015 § Leave a comment

This is from a PSA entered into between Joe Bryant and his then-wife, Adella Jones:

[Adella] will receive as property settlement[] fifty percent (50%) of [Joe’s] disposable retirement from the Unites States Marine Corps/Army National Guard and fifty percent [50%] of [Joe’s] disposable retirement from the Veterans Administration which will be paid directly to [Adella] by the United States Marine Corps/Army National Guard and the Veterans Administration.

Joe retired from the VA on November 1, 2008, and from the military on June 30, 2010, and began receiving 100% of his retirement from both. He never paid any of the amounts received to Adella.

In October, 2010, Adella submitted her application for her retirement benefits, unaware whether Joe had retired, and she began receiving her one-half in January, 2011.

After Joe had filed a futile modification action, and she learned that he had begun receiving 100% of his retirement benefits for a time before she received any, Adella filed a contempt action against Joe.

Following a trial, the chancellor ruled that it was the military, and not Joe, that was required to make the payments, and, therefore, that he was not in contempt. The judge did award Adella a judgment against Joe for one-half of the retirement he had received in the interim in the amount of $46,433. Adella appealed.

On April 7, 2015, the COA affirmed in Jones v. Bryant. Judge Carlton’s for a unanimous court explained:

¶15. In the July 2, 2013 order granting Adella’s motion to dismiss [Joe’s pleading for modification], the chancellor found that “after reviewing the property settlement agreement, . . . the provisions regarding military retirement are clear and unambiguous and should not be modified.” The chancellor later entered a final judgment on August 8, 2013, further holding that “the property settlement agreement requires Adella’s portion of the retirement to be paid by the United States Marine Corps/Army National Guard and the Veterans Administration rather than by Joe,” and as a result, “Joe is not in willful and contumacious contempt of the agreement.” We find Adella presented no evidence to support her claims that Joe willfully or intentionally violated any court order. The record reflects that the plain language of the property-settlement agreement in this case provides that Adella’s portion of Joe’s military retirement pay would be paid directly to her by the Marine Corps/Army National Guard and Veterans Administration.

¶16. The Uniformed Services Former Spouses’ Protection Act (USFSPA) provides former spouses, who are awarded a portion of military retirement pay in a divorce, with “a mechanism to enforce retired pay as property award by direct payments from the member’s retired pay.” See Defense Finance and Accounting Service, Frequently Asked Questions, http://www.dfas.mil/garnishment/usfspa/faqs.html; 10 U.S.C. § 1408 (2012). [Footnote omitted] The former spouse must complete and provide the required applications, relevant court order, and supporting documentation, as required by statute and regulations, to the designated Defense Finance and Accounting Service, and the language in the property award must also comply. [Footnote omitted]

¶17. After our review of the record, we find substantial evidence exists in the record to support the chancellor’s final judgment determining Joe was not in willful and contumacious contempt of the property-settlement agreement or any other court order. Accordingly, we also find no error in the chancellor’s denial of attorney’s fees to Adella. See Henderson v. Henderson, 952 So. 2d 273, 280 (¶23) (Miss. Ct. App. 2006).

How can you avoid a similar result for your client?

Any duty that you want to be enforceable later in favor of your client needs to spelled out. Here, it would have been simple to spell out that Joe had the duty to notify Adella in writing within a specified time of his retirement. For example, he could have been required to send her a copy of his application for benefits simultaneously with its submission to the agency.
Whenever a contract requires third-party payments on behalf of A, specify that A will be responsible to make the agreed payments himself to B until the third party begins making them. For instance, “Joe will pay one-half of any retirement benefits received by him directly to Adella until such time as the [agency] begins withholding her 50% portion” or words to that effect.
You might want to read that Department of Defense material and incorporate some of it verbatim in your PSA. Agencies understand their own jargon better than yours or the court’s.
Is it in your client’s interest to spell out whether the retirement is being paid as property division on the one hand, or as alimony on the other? It might be; you need to consider it.
Know and understand how the retirement system works. Read the interpretive material. Study the website. Draft your PSA from a position of knowledge, not guesswork.

Right to Appointed Counsel in a TPR Case

June 1, 2015 § 5 Comments

If any area of family law has undergone what could unquestionably be considered an upheaval recently, it would have to be termination of parental rights (TPR), per MCA 93-15-101, et seq.

The 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 be satisfied before the chancellor may consider whether any of the grounds for termination apply in the case. It was that case that caused us to question whether TPR as a private action between individuals was now extinct.

In Pritchett v. Pritchett, decided April 7, 2015, the COA took up the issue whether an indigent parent facing TPR is entitled to appointment of counsel. Judge Roberts, applying US Supreme Court precedent, concluded that such a right does exist. His reasoning:

¶9. As was outlined above, James claimed indigency and requested an attorney be appointed on three separate occasions, and the chancery court never addressed his requests, nor did it appoint an attorney to represent him. It is well established, through the Sixth Amendment to the United States Constitution, that an indigent defendant in a criminal case has a right to the assistance of counsel, specifically when a defendant’s loss of liberty may result; however, the case before us today is a civil case.

¶10. Nonetheless, it is also well established that “a parent’s desire for and right to ‘the companionship, care, custody[,] and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’” Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Further, “[a] parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore[,] a commanding one.” Id. In footnote three of Lassiter, the Supreme Court noted that “[s]ome parents will have an additional interest to protect. Petitions to terminate parental rights are not uncommonly based on alleged criminal activity. Parents so accused may need legal counsel to guide them in understanding the problems such petitions may create.” The Supreme Court held in Lassiter that it would not be “‘prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary’ . . . since ‘the facts and circumstances are susceptible of almost infinite variation.’” Id. at 32 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). It also stated that “[i]nformed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel[,] not only in parental termination proceedings, but also in dependency and neglect proceedings[.]” Id. at 33-34. But the Supreme Court ultimately left the decision on whether to appoint counsel to be decided on a case-by-case basis by the state. At the time of Lassiter, statutes in thirty-three states and the District of Columbia provided for the appointment of counsel in termination cases. Id. at 34.

¶11. The termination of parental rights is a serious and permanent proceeding, one which effectively ends any ties between a parent and a child. The Mississippi Legislature recognized the seriousness of such an event and recommended that alternatives to the termination of parental rights be pursued “when, in the best interest of the child, parental contacts are desirable[.]” Miss. Code Ann. § 93-15-103(4). The Mississippi Supreme Court case of K.D.G.L.B.P. v. Hinds County Department of Human Services, 771 So. 2d 907, 909 (¶8) (Miss. 2000), also involved the question of whether a natural parent should be appointed an attorney in a termination-of-parental-rights proceeding. In K.D.G.L.B.P., the chancery court thoroughly questioned the natural mother about the lack of an attorney and whether she would represent herself. Id. at (¶9). She indicated that she would represent herself, she never asked for a continuance, and she did not indicate that she was unable to afford an attorney. Id. at 909-10 (¶¶9-10). The supreme court, in analyzing Lassiter, stated:

One of the most important factors to be considered in applying the standards for court[-]appointed counsel is whether the presence of counsel would have made a determinative difference. The Lassiter decision thus states that appointment of counsel in termination proceedings, while wise, is not mandatory and therefore should be determined by state courts on a case-by-case basis.

Id. at 910 (¶12). The supreme court went on to find that “the mother was granted a fair and adequate hearing.” Id. at 911 (¶14).

She was given ample notice of the proceeding in time for her to secure suitable counsel. At trial, she never asked for a continuance or for additional time to seek substitute counsel. Instead, she signified to the court that she intended to represent herself and that she was ready to proceed. Furthermore, on the day of trial, she did not even allude to the fact that her financial condition might have precluded her from being able to retain counsel. This argument was only raised in post-trial motions. Finally, the evidence supporting the chancellor’s decision to terminate the mother’s parental rights was so overwhelming that the presence of counsel would not have changed the outcome of the trial. Although the termination of parental rights is a serious judicial proceeding, a review of the record indicates that the chancellor’s actions ensured that the mother was provided a constitutionally adequate hearing as guaranteed by the Fourteenth Amendment.

Id.

¶12. The case before us is distinguishable from K.D.G.L.B.P. in that serious due-process concerns exist in this case that were not present in K.D.G.L.B.P. James claimed indigency in three letters filed with the chancery court and requested appointment of counsel. The record does not contain a response from the chancery court. Furthermore, James requested the chancery court assist him with securing transportation to the hearing. The only action taken by the chancery court was to “continue [the] matter for [James] to arrange transportation.” Since James was an inmate in MDOC custody, it appears disingenuous to say that he could arrange his own transportation. The hearing proceeded in James’s absence.

¶13. We simply are unable to conclude, based on the scant record we have, that the presence of counsel would not have made an outcome-determinative difference. As an illustration, James’s request to be present for the hearing could have been secured by his attorney filing a writ of habeas corpus ad testificandum, which would have required James’s presence at the hearing to testify. Such a common-law writ would command the custodian, MDOC, to bring James to the chancery court to testify. Mississippi Code Annotated section 9-1-19 (Rev. 2014) and Mississippi Code Annotated section 11-43-7 (Rev. 2012) provide chancery courts the authority to grant such writs as habeas corpus. Additionally, an attorney’s presence could have aided James with presenting the complex issue of the applicability of the section 93-15-103 to the present facts.

¶14. We reverse the chancery court’s decision and remand this case for the chancery court to determine the question of indigency and the necessity of appointment of counsel under Lassiter, and for the chancery court to make appropriate arrangements for James to be present and/or participate in the proceedings.

The message here is that TPR is serious and has constitutional implications that require heightened due-process requirements. The judge should inquire searchingly on the record whether the defendant understands the nature of the action and what is at stake, and whether the defendant is honestly capable of representing his or her own interests.

Carried to its logical extreme, I wonder whether any pro se party in any case is ever truly equipped to decide whether he or she should proceed without counsel? Is any lay person competent to make that determination without advice of counsel? No matter, all that is required under Lassiter and K.D.G.L.B.P. is a waiver on the record.

Where Am I?