Is Termination of Parental Rights in an Adoption Mandatory?

July 30, 2018 § 1 Comment

In a previous post back in 2015, I pontificated that MCA 93-17-13(2) precludes an adoption action that would leave intact parental rights in the final judgment. You can read it here. The post was premised on the language of MCA 93-17-13(2), the pertinent part of which states, ” … and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent …” in the final judgment of adoption.

Turns out I was sort of right and sort of wrong. In DDH v. Gray and Dotch, decided January 11, 2018, the MSSC reversed a chancellor’s decision denying an adoption that would have resulted in preservation of the mother’s parental rights post-adoption.

In DDH, Patrick Gray and Felecia Dotch had petitioned the court to allow Gray to adopt DDH while Dotch retained her parental rights as mother of the child. The two were never married, but they had engaged in a romantic relationship and believed that Gray was father of the child. DDH lived with Gray’s mother until she was old enough to start school, when she began living with Dotch. Both Gray and Dotch married other people, but Gray continued to visit with and support the child financially. After the child turned 10, they discovered that Gray was not the father; nevertheless, he continued to visit and support the child. They decided that Gray should adopt DDH, but they asked in their petition that Dotch be allowed to retain “care, custody, and control” of her. The chancellor denied the petition based on the language of MCA 93-17-13(2) cited above. Gray and Dotch appealed.

In a decision by Justice Chamberlin, the MSSC reversed. The court noted that MCA 93-17-13(2) begins with the language, “The final decree shall adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interests of the child; and its effect, unless otherwise specifically provided, shall be … ” The court pointed out that:

¶18. Section 93-17-13(2) provides the general effect of the final adoption decree. Further, the first part of the statute notes the paramount concern in an adoption: the best interests of the child. It states that the final decree may contain “provisions as may be found by the court to be proper for the protection of the interests of the child . . . .” Miss. Code Ann. § 93-17-13(2). It also states the effect of the final decree “unless otherwise specifically provided.” Id. (emphasis added). Thus, Section 93-17-13(2) makes it clear that the effect of the final adoption decree can be tailored by the chancellor if found to be in the child’s best interest. The Court has addressed the discretion of a chancellor to modify a final adoption decree under the language of Section 93-17-13(2), and although the cases are not completely analogous factually, they provide guidance to the instant issue.

The opinion goes on to examine cases in which the trial courts had tailored the adoption judgment to suit the best interest of the child, including at least one case in which the father’s parental rights were left intact.

The analysis concludes with this:

¶27. Gray has been in D.D.H.’s life since her birth, acting as a natural parent and providing support and care for her. Even upon learning that he was not the natural father, Gray continued to fulfill the role of father in her life. As such, he has been acting “in loco parentis.” Griffith v. Pell, 881 So. 2d 184, 186 n.1 (Miss. 2004) (“A person acting in loco parentis is one who has assumed the status and obligations of a parent without a formal
adoption.”). [Fn omitted] Further, the chancellor noted in the record that the adoption “could be [in] the best interests of the child” and later that it “may be [in] the child’s best interest.”

¶28. Under the facts of the instant case, if the chancellor—on remand—makes a finding that the adoption is in the best interests of D.D.H., the “otherwise specifically stated” language of Section 93-17-13(2) allows Gray to adopt the child and allows Dotch to keep her parental rights. Our holding is narrowly tailored to the following facts: (1) Gray has acted in loco parentis; (2) he is seeking to adopt and would be adopting as the father; (3) he is seeking to raise the child in concert with Dotch, the natural mother; (4) his spouse will be joined to the proceeding, and (5) there are no third parties to the adoption seeking to keep parental rights. [Fn 6]

[Fn 6] We also note that the biological father was properly served and failed to exercise his rights. The chancellor found that “the unknown natural father was served in the manner required by law and was called in open court and did not appear.”

¶29. Further, our holding is based upon the ultimate goal of the Court in adoption proceedings to keep the best interests of the child in the forefront. As we have recognized in the past, “[n]ot all adoptions are ‘traditional.’ The chancellor is in the best position to assess this question with respect to each adoption on a case by case basis.” In re [Adoption of] P.B.H., 787 So. 2d [1268] at 1275 [(Miss. 2001)].

¶30. This is the situation that we, as a Court, hope to see: a child who has a nonbiological father who has continued to care for her—despite his knowledge of the lack of biological kinship—and now wishes to recognize legally his bond with his daughter. We have stated: “[P]arental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child where the parent assumes responsibility for the child’s emotional and financial needs.” Griffith, 881 So. 2d at 186–87.

This is an unusual fact pattern, but the implication of the case is clear that the chancellor has the authority to fashion the final judgment off adoption so as to be in the best interest of the child, even when it means leaving the parental rights intact.

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§ One Response to Is Termination of Parental Rights in an Adoption Mandatory?

  • John H. (Zeke) Downey says:

    Usually, I disagree with the Supreme Court when it fails to follow the law, but in this case they seem to have done the right thing.

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