Correcting Course in an In Loco Parentis Case
November 10, 2015 § 1 Comment
Back in January, 2014, we talked about the COA’s decision in JSW v. AWS, handed down in December, 2013. Here’s our recitation of the facts in JWS:
… Jake and Ann married when Ann was pregnant. Vanessa was the first child born, followed by Brett, a year and a half later. Before she married Jake, Ann had a one-night stand with Tommie. Tommie believed he could be the father of Vanessa, but he took no action because he knew of Jake’s and Ann’s relationship.
In 2007, when Vanessa was nearly three years old, Tommie’s mother called and inquired whether Vanessa might be his child. Ann denied it, but Jake decided to have a DNA test, which ruled him out as the natural father. Jake and Vanessa decided that he would continue to raise Vanessa as his own.
In 2009, Jake and Ann were divorced after five years of marriage. In the divorce, via PSA, the parties agreed that they would share physical custody, alternating weekly.
Less than a year after the divorce, the parties were back in court, fighting over custody and support. Before a hearing could be held in their contest, however, Tommie filed an action for an adjudication of paternity of Vanessa, and for custody, and visitation. A DNA test confirmed that Tommie was the natural father of Vanessa.
In his adjudication, the chancellor considered Jake and Tommie as the natural parents, and Jake as a third party. He found that, although Jake had acted in loco parentis, that alone was not enough to overcome the natural parent presumption. The chancellor awarded Ann custody, and Tommie visitation. Based on Jake’s in loco parentis status, the chancellor awarded him visitation commensurate with Tommie’s.
The COA reversed, finding that the chancellor applied an incorrect legal standard. The COA held that the non-natural father’s fatherly actions had rebutted the natural-parent presumption, the COA directed the trial court on remand to consider Jake as on an equal footing with the natural parents, to conduct an Albright analysis with respect to his claim, and to factor him into the custodial mix, essentially creating a three-way custody contest.
Tommie petitioned for cert, which the MSSC granted. In its decision, handed down December 11, 2014 under the style of In the Interest of a Minor Victoria Denise Waites: Waites v. Ritchie and Sanford, the MSSC reversed, finding that the chancellor did apply the correct legal standard, and reinstating his decision.
You can read the decision for yourself. It includes all the authority you might expect, an reaches what I believe is a rational conclusion based on the entire body of case law that has developed in this area. It also removes the specter of more possible three-way custody disputes in cases like this — although the mind of man and the imagination of lawyers may prove that statement wrong in some later case.
The reason I am posting this now is that I found that I had never posted on Waites, as I should have, and this is a fairly active area of custody litigation, so I wanted this case to pop up if you search the in loco parentis topic.
By the way: notice how the in loco parentis father who was denied custody ultimately by the MSSC’s affirmance nonetheless has kept his visitation throughout?
The Next Obergefell Shoe Falls
November 9, 2015 § 6 Comments
Before the US Supreme Court ruled in Obergefell v. Hodges on the constitutionality of same-sex-marriage bans and recognition of same-sex-marriages contracted in other states, Mississippi had its own same-sex-marriage case, Czekala-Chatham v. State of Mississippi, about which I posted previously. At the trial level, the chancellor had refused to recognize the parties’ marriage in another state, as required by the language of our state Constitution, and the appellant appealed, claiming that the Mississippi provision was contrary to the US Constitution. The State of Mississippi countered, taking the position that the ban was constitutional. As you may recall, the MSSC put that case on hold after the SCOTUS granted cert in Obergefell.
Then Obergefell came down in June, 2015, ruling unconstitutional state bans on issuance of marriage licenses to same-sex couples and requiring states to recognize the lawful marriages of same-sex couples in other states. Mississippi then confessed the appellant’s position in Czekala-Chatham, and the appellant then moved to dismiss the complaint and render judgment in favor of the appellant. The case has sat on the MSSC docket since then. In the four months since SCOTUS ruled, our court had been silent on its same-gender case.
On November 5, 2015, in Czekala-Chatham v. State of Mississippi, the MSSC did finally rule on the case, but only via an order that says, in essence, that, since the state had agreed that the case should bee reversed and remanded for further proceedings, “We find that no contested issues remain for resolution, and that the [appellant’s] motion should be granted. End of case for now.
The order, signed by Justice Randolph, was joined by Lamar, Chandler, and Pierce. Pierce agreed, with a separate opinion joined by Chandler. Justices Dickinson, King, and Coleman objected to the order.
All writing separate opinions would have preferred to render an opinion in the case to discuss its merits. Justice Coleman offered his objecting opinion as what he would have written to find Mississippi’s laws on the subject unconstitutional.
From the majority’s viewpoint, I suppose, the order narrowly rests on the vehicle that was presented to the court: i.e., the appellant’s motion to dismiss, and the majority did not want to venture out into areas not encompassed in the motion.
To the objectors, however, the court missed an opportunity to settle this area of law in our state so that litigants, lawyers, and judges would have a clear beacon by which to navigate.
All of the ramifications of Obergefell will become clear over time, but it will take more appeals than Czekala-Chatham to get there, it appears.
“Quote Unquote”
November 6, 2015 § 2 Comments
“As for the education of our children is concerned I think they should be taught not the little virtues but the great ones. Not thrift but generosity and an indifference to money; not caution but courage and contempt for danger; not shrewdness but frankness and a love of truth; not tact but love for one’s neighbor and self-denial; not a desire for success but a desire to be and to know.” — Natalia Ginzburg
“To be able to practice five things everywhere under heaven constitutes perfect virtue — gravity, generosity of soul, sincerity, earnestness, and kindness.” — Confucius
“The weakest of all weak things is a virtue which has not been tested in the fire.” — Mark Twain
When is Appointment of a GAL Required?
November 4, 2015 § 1 Comment
There are three circumstances when appointment of a GAL in chancery court is required by statute: (1) when an allegation is made in pleadings or at hearing that there has been abuse or neglect; and (2) when there is an adoption to which both active parents have not consented; and (3) for the child in a termination of parental rights suit.
Other than those situations, it is in the chancellor’s discretion whether to appoint a GAL.
The question remains, however: what needs to be alleged in order to trigger the statutory mandate? That was the question before the court in the COA case of Carter v. Carter, handed down October 6, 2015.
Josh and Jennifer Carter were from each other in 2011. Jennifer got custody of the parties’ daughter, Delaney. Josh filed for modification of custody in 2012, alleging material change and adverse effect. In the course of the proceedings, Josh filed a motion to inspect the premises of Jennifer’s residence. The chancellor ruled that neither Josh nor his attorney should do so, but he appointed Aby, a local attorney to perform the inspection and file a report with the court. Although the appointment did not designate her as a GAL, and it did not spell out any duties of a GAL, Aby titled her report, “Report of Guardian Ad Litem.” Neither party had requested appointment of a GAL. At trial, Aby testified to deplorable conditions at Jennifer’s home, which the chancellor characterized as “shocking,” “squalid,” and “dangerous.” Aby’s report, considered with testimony about Delaney’s medical needs, were enough to convince the chancellor to conclude that custody should be modified, and he awarded custody to Josh.
Jennifer appealed, arguing that the chancellor erred by not appointing a GAL in the case. Specifically, she pointed to Josh’s testimony that she overlooked Delaney’s medical and nutritional needs, which, she contended, should have required the appointment. Jennifer’s argument raises what appears to be a simple question, but is really deceptively complex: what does it take to trigger the statutory mandate?
Judge Fair, for the majority, described the difficulty:
¶16. Our analysis of this issue is made more difficult because our supreme court has not elaborated on what sort of allegations are required, or when or how those allegations must be made, in order to make the appointment of a guardian ad litem mandatory. Neglect is difficult to define and could arguably be present, to some degree, in mundane allegations of imperfect parenting that should not demand investigation by a guardian ad litem. Jennifer’s implicit argument that any suggestion of neglect requires the appointment of a guardian ad litem would amount to a de facto rule that a guardian ad litem must be appointed in most custody disputes.
Almost every custody modification case involves allegations of “imperfect parenting” that often does not rise to the level off neglect and abuse. So where does one draw the line?
The court went on to point out that the MSSC “has always predicated the guardian-ad-litem requirements on the Mississippi Youth Court Law and related statutes,” and analyzed the applicable law. The opinion continues:
¶18. We conclude that since the requirement of appointing a guardian ad litem in chancery cases derives from an exception to the youth court’s jurisdiction over abused or neglected children, to trigger the guardian-ad-litem requirement, the allegations of neglect must be of sufficient severity such that, if proven, they would have triggered the youth court’s jurisdiction had there not already been proceedings in the chancery court. In other words, they must amount to an allegation that the child was a neglected child as defined by the Youth Court Law. It defines a neglected child as one:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter;
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) who, for any reason, lacks the care necessary for his health, morals or well-being.
Miss. Code Ann. § 43-21-105(l) (Supp. 2014).
…
¶23. Given the wide range of conduct that could arguably constitute neglect, this Court has held that when neglect is not expressly alleged, the question of whether it has been effectively alleged is entrusted to the sound discretion of the chancellor. See Johnson v. Johnson, 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004). In this case, the chancellor clearly did not take the allegations and evidence presented regarding Delaney’s health and care in Jennifer’s custody as possessing the weight and severity of an allegation that she was a neglected child under the Youth Court Law, and we cannot say there was an abuse of discretion in the failure to appoint a guardian ad litem to investigate.
The COA did hold that, if appointment of a GAL in this case were required, Aby’s conduct fulfilled that role.
It would be a good idea, if you think a GAL should be appointed, to include some language in your pleadings that invokes the criteria of the Youth Court Act. Then you can point to the specific language of the statute to support your request. Only be sure you have substantial proof to support your allegations, or else your client may be looking at paying out a chunk of cash for the GAL’s troubles, not to mention the other side’s attorney’s fees to defend.
Tie Goes to the Runner
November 3, 2015 § 1 Comment
Aside from the fact that the MSSC was called upon to review a chancellor’s award of $30,110,618 in combined actual and punitive damages and civil penalties under the Consumer Protection Act, the case of In the Matter of Mississippi Medicaid Pharmaceutical Average Wholesale Price Litigation: Sandoz, Inc. vs. State of Mississippi, decided October 26, 2015, is remarkable for the fact that it was affirmed by a divided court, and for how Mississippi handles the precedential value of split decisions.
But before we get to that, this case is also fascinating for the mirror-image approaches that the majority and dissents took toward the chancellors’ conclusions re the evidence.
This was a case in which Sandoz, Inc., a generic drug supplier, provided the State Division of Medicaid with its Average Wholesale Price (AWP) index, purporting to show the cost to pharmacies for drugs wholesaled to them by Sandoz. The chancellor found, however, that the AWP claimed by Sandoz exceeded actual wholesale prices charged to the pharmacies by some 886%, causing the state to overpay for drugs provided under the Medicaid program. The chancellor found that Sandoz was guilty of common-law fraud, and that it violated Mississippi’s Consumer Protection Act, and he assessed damages. The chancellor also denied the state’s claim for attorney’s fees, and its claims that the chancellor improperly calculated damages.
Sandoz and the state both appealed. The MSSC affirmed on both direct and cross-appeals.
Justice Chandler wrote the plurality opinion, joined by Kitchens, King, and Randolph specially concurring. Justices Dickinson and Lamar wrote dissenting opinions that were joined by Pierce and Coleman. Waller did not participate. If you’re counting, the score is Affirm = 4, Dissent = 4, Abstain = 1. If the vote is tied, the decision is affirmed. See Rockett Steel Works v. McIntyre, 15 So. 2d 624 (Miss. 1943) (“Three of the judges of this Court are of the opinion that the judgment of the court below should be affirmed, and three [are] of the opinion that it should be reversed; consequently, that judgment must be, and is affirmed.”).
And this is the point at which it gets interesting. Justice Randolph concurred in the result, but he vigorously argued that the court should not have issued an opinion in the case, but rather should have issued an order merely affirming since there was no majority in agreement to issue a statement of the law on the subject. He cites SCOTUS opinions that support his position holding that split decisions have no precedential value, and concludes by questioning why our court clings to its practice of issuing opinions that can be used as precedent in such cases. I have to say that I find his brief concurring opinion persuasive. I commend it to you.
Justice Lamar’s opinion is also interesting for its recitation of the facts in the record. She calls into question many of the chancellor’s conclusions. The prevailing opinion was ultimately swayed, however, by deference to the trial finder of fact’s conclusions.
This case presents some complicated facts, but it’s worth read for its glimpse into the inner workings of our highest court.
The Extent of Grandparental Visitation
November 2, 2015 § 4 Comments
Jason McKinney and his wife, Shelida, had three children. Jason’s parents, Harold and Kim McKinney, enjoyed spending time with their grandchildren.
After Jason was killed in an automobile accident in 2012, however, Harold and Kim found it increasingly difficult to see and spend time with the grandchildren. It seemed that every time they tried to visit the children had some kind of scheduled activity that prevented or precluded the visit.
Harold and Kim filed a petition with the court for grandparental visitation. Shelida responded by denying that they were not entitled to a court order because she had not denied them visitation, so that they were not entitled. she also denied in her testimony that the grandparents had been involved enough in her children’s lives during Jason’s lifetime so as to entitle them to a court order.
The chancellor found that Harold and Kim were entitled to a court order, and directed visitation every Monday afternoon from 3:30 pm until 7:00 pm, and the third weekend of every month from Saturday at 8:00 am until Sunday at 4:00 pm, and one week in the summer. Shelida appealed.
In McKinney v. McKinney, handed down September 29, 2015, the COA affirmed.
The COA opinion, by Judge Irving, first addressed Shelida’s contention that Harold and Kim were not entitled to visitation because they had not shown that they had been denied, and they did not establish the quality of relationship with the children that would qualify them under the statute. Rejecting Kim’s argument, the court pointed out that Harold and Kim were entitled to an order establishing visitation by virtue of MCA 93-16-3(1), due to the fact that their son, the father of the grandchildren, had died. That fact was the sole prerequisite to a court order, and they were not required to show that they had been denied visitation, or that they had established a viable relationship with the children, as required in MCA 93-1603(2), which applies when both parents of the grandchildren are alive.
Next, the court turned to Shelida’s argument that the chancellor awarded the grandparents too much visitation. Judge Irving’s opinion:
¶14. Shelida next argues that even if visitation was warranted, the chancery court erred in granting the grandparents more visitation than they exercised prior to their son’s death. She stresses that the grandchildren did not visit with their grandparents more than two or three times a week while Jason was alive, and she takes issue with the chancery court granting overnight visitation since the children had rarely spent the night at their grandparents’ house during Jason’s lifetime.
¶15. The Mississippi Supreme Court in Settle v. Galloway, 682 So. 2d 1032, 1035 (Miss. 1996) (internal citations omitted), in expressing concern over excessive grandparent visitation, stated:
Natural grandparents have no common-law “right” of visitation with their grandchildren. Such a right must come from a legislative enactment. Although the Mississippi Legislature created this right by enacting [section] 93-16-3, it is clear that natural grandparents do not have a right to visit their grandchildren that is as comprehensive as the rights of a parent.
¶16. For guidance, our supreme court has listed ten factors that should be considered in determining grandparent visitation. The factors are as follows:
1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time;
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child;
3. The age of the child;
4. The age and physical and mental health of the grandparents;
5. The emotional ties between the grandparents and the grandchild;
6. The moral fitness of the grandparents;
7. The distance of the grandparents’ home from the child’s home;
8. Any undermining of the parent’s general discipline of the child;
9. Employment of the grandparents and the responsibilities associated with that employment;
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.
Martin v. Coop, 693 So. 2d 912, 916 (Miss. 1997). In arriving at the decision to grant the grandparents visitation, the chancery court considered the best interests of the minor children and each of the Martin factors and ultimately fashioned a visitation schedule that took into consideration the grandchildren’s weekly schedule. And regarding the summer visitation, the court noted that it would grant visitation to the grandparents the second week in July so that Shelida would be able to celebrate the Fourth of July holiday with her children. We find nothing excessive about the amount of visitation ordered, and certainly nothing as comprehensive as would be awarded to a noncustodial parent. Therefore, we find no error in the decision of the chancery court. This issue is without merit.
A couple of takeaways:
- The grandparents’ visitation is not limited to the amount they experienced during the deceased parent’s lifetime. Rather, the extent of visitation must be based on consideration of the Martin factors and the circumstances of the children’s lives, taking into account that grandparental visitation is less extensive than parental visitation.
- Read this decision carefully and understand that there are two categories of grandparental visitation. The first category is nearly automatic; the second is much trickier and requires more proof.
- In rural areas it is not uncommon for the children to get on and off the school bus at the grandparents’ home, to run next door to see them at will, to spend nights and weekends with the grandparents, and to have the grandparents participate in almost every facet of the children’s lives. That less “comprehensive” rule announced in Settle v. Galloway seems too stringent in this kind of living arrangement. If a parent dies, why would the grandparents not have more visitation, even to the extent that the dead parent would have had if not deceased.
- The more detailed proof you offer to support the time the children have spent with the grandparents, and its quality, and what the grandparents have to offer, will strengthen your case when you represent the grandparents.
- In my experience, only grandparents who have truly had a negative influence on the family and would be genuinely bad for the children are denied visitation. Even if your client wants them to have no visitation, you need to help your client understand how the judge will use and apply the Martin factors. Tailor your proof to showing how that visitation should be minimized rather than denied.
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