Grounds for TPR and Adoption
July 17, 2019 § Leave a comment
Justin Harmon and Kristin Ingle were divorced in 2013. Kristin was awarded sole custody of their two children. Justin was granted restricted visitation due to drug and alcohol abuse, and Kristin was authorized to suspend visitation if she had credible information that Justin had returned to his abusive ways. After an episode in which Justin became drunk while visiting, Kristin did suspend the visitation. In 2016, she and her new husband filed petitions for termination of Justin’s parental rights and for adoption of the two children. Justin objected.
A GAL was appointed. Justin failed a hair-follicle test, positive for methamphetamines. The chancellor found that there was an adequate basis for TPR and adoption, and granted that relief. Justin appealed.
The COA affirmed on May 7, 2019 in Harmon v. Ingle and Perry. The case is a good illustration of the type of behavior that the courts can find to justify TPR and adoption, so I am quoting from Chief Judge Barnes’s opinion for the unanimous court:
¶10. Although Justin concedes that he had not seen his children or paid child support for more than three years by the time of trial, he argues that his “abandonment” was due to Krystal’s interference with his visitation. Justin claims he was not informed of their change in address, which violated the court’s order. Therefore, he argues that his parental rights were wrongfully terminated, and he requests that this Court reverse the judgment and remand for reinstatement of his parental rights.
¶11. A chancery court’s termination of a parent’s rights is reviewed “under the manifest error/substantial credible evidence test.” Blakeney v. McRee, 188 So. 3d 1154, 1159 (¶13) (Miss. 2016). “[W]here there is credible proof from which a rational trier of fact may have found grounds for termination by clear and convincing evidence,” the trial court’s decision will not be disturbed. Id. (quoting A.B. v. Lauderale Cty. Dep’t of Human Servs., 13 So. 3d 1263, 1267 (¶14) (Miss. 2009)). The grounds for the involuntary termination of parental rights are set forth in Mississippi Code Annotated section 93-15-119, which provides in pertinent part:
(1) A court hearing a petition under this chapter may terminate the parental rights of a parent when, after conducting an evidentiary hearing, the court finds by clear and convincing evidence:
(a)(i) That the parent has engaged in conduct constituting abandonment or desertion of the child, as defined in Section 93-15-103, or is mentally, morally, or otherwise unfit to raise the child, which shall be established by showing past or present conduct of the parent that demonstrates a substantial risk of compromising or endangering the child’s safety and welfare; and
(ii) That termination of the parent’s parental rights is appropriate because reunification between the parent and child is not desirable toward obtaining a satisfactory permanency outcome; or
. . . .
(2) An allegation of desertion may be fully rebutted by proof that the parent
. . . .
(b) Was willing to provide financial support and to make visitations with the child, but reasonable attempts to do so were thwarted by the mother or her agents, and that the parent is now willing and able to assume legal and physical care of the child.
¶12. “Abandonment . . . includes ‘any conduct by a parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child.’” In re Adoption of Minor Child, 931 So. 2d 566, 577 (¶29) (Miss. 2006) (quoting Gunter v. Gray, 876 So. 2d 315, 320 (¶21) (Miss. 2004)). “The test for abandonment is objective and requires a finding that, under the totality of the circumstances, ‘the natural parent has manifested his severance of all ties with the child.’” Id. Krystal testified that Justin never contacted her regarding visitation with the children; he only left her one voicemail in 2015 asking if the kids could go see his ailing grandfather.
Q. Okay. But he’s never asked you about making arrangements to visit with the children?
A. No, sir.
. . . .
Q. Have you received any child support payments?
A. No. The last one I received was dated for January 2014. The chancery court concluded in its orders that there was clear and convincing evidence that Justin had not made any “reasonable efforts” to visit the children. At trial, Justin claimed that he tried to call Krystal, but she did not answer; so he assumed she had changed her number and “didn’t see the point in continuing.” However, he admitted that he never tried to text her. Justin also knew where Krystal’s parents lived and worked. As the chancellor noted in his findings, even if we find all of Justin’s testimony credible, “it would be that he made two or three phone calls, [his uncle] made two or three phone calls, his mom and dad talked to [Krystal’s dad] and that’s about it.”
¶13. The testimony also showed that Justin had little to no relationship with his youngest son. At trial, Justin was not even certain of Jesse’s date of birth and admitted his youngest son would likely not recognize him. Justin’s relationship with his older son, Brian, was strained at best because Brian was a witness to his alcohol abuse and anger outbursts. Krystal testified: “A kid should not see their parent punch a bedroom door and have their hand come out on the other side trying to get to their mom. . . . [Brian] has no good memories of being a kid, and it’s because I stayed [with Justin].” Krystal cancelled a supervised visitation during the couple’s separation because Brian had hives, which were caused by stress, and she opined that if the boys had to resume visits with Justin, “it would destroy them.” Justin confessed that he used methamphetamine for a couple of years during the divorce, and the evidence of his drug test showed positive results for methamphetamine in 2017.
¶14. At trial, the chancellor expressly rejected Justin’s argument that Krystal interfered with his visitation, finding:
When [Krystal] left in 2014, she did not do so, in the opinion of the [c]ourt by clear and convincing evidence, with the intent of forever and permanently severing the relationship between these children and Justin. She did so in an attempt to protect them and convince him to get his life in order.
He also found that the evidence showed that Justin “willfully neglected and refused to provide any support for those children.” We find substantial and credible evidence to support the chancellor’s findings. Krystal acknowledged that she did not notify Justin of her new address but explained that she “was scared because [she] knew his anger outbursts and his problems” and that she “was just trying to be safe and protect my kids.” She checked Justin’s Facebook page occasionally to see how he was doing, but because he never contacted her regarding the children, she “assumed that he hadn’t gotten any better.” Krystal said she was surprised that Justin never made any attempt to try to resume visitation.
Q. Were you trying to hide the boys from Justin?
A. No. Like I said, I genuinely, in my gut, thought that, especially asmuch financial and legal help that Randy and Janet had with Justin, that they were going to file some sort of paperwork[,] and I would be able to get him to go back to rehab so he could get clean again so we could do supervised visits again so we could start the whole process over again. I didn’t know he would just drop it.
The GAL’s report acknowledged that Krystal kept the children from Justin, but did so for their safety and well-being, noting: “Krys[tal], I think, tried to sever all ties with Justin because of their past history, with his violence and drug/alcohol abuse.” However, the GAL further observed that neither Justin nor his family members “took any of the necessary steps to become a part of the children’s lives.” The GAL concluded that it was in the children’s best interest for Justin’s parental rights to be terminated and for Shaun to be allowed to adopt the boys. Justin does not dispute the GAL’s factual findings.
¶15. Furthermore, the evidence was undisputed that Justin provided no financial support for the children since February 2014. The chancery court observed:
If he were willing to provide financial support, he would have come into court and said, “Here’s the bank statement from the local bank where I set up a savings account for my children, and here’s the money.” . . . Instead what he said was he didn’t work very often, . . . he didn’t have the money to pay the child support.
As the GAL testified, Justin, who had a commercial driver’s license, did not work regularly after the divorce, and the attributing cause of his lack of employment was his abuse of drugs and alcohol.
¶16. Because there was clear and convincing evidence that Justin made no serious effort to see his children or to provide financial support for them from 2014 to 2017, we find no manifest error in the chancery court’s determination that he had engaged in conduct constituting abandonment and that it would not be in the children’s best interest to be reunified with their natural father. Accordingly, we affirm the court’s orders to terminate Justin’s parental rights and to grant the petitions for adoption.
No Longer Competing Jurisdiction over TPR
May 14, 2019 § 5 Comments
You might recall that in the case of MDHS v. Watts, 116 So.3d 1056 (Miss. 2012), the MSSC held that a chancery court was not required to hold its exclusive jurisdiction over adoption in abeyance to allow a youth court to proceed to termination of parental rights (TPR) of the parents.
When Watts was decided, there were two TPR statutes: one was 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 statute.
Some four years after Watts the legislature amended the TPR and adoption statutes and made important changes that had the effect of eviscerating Watts. It added MCA § 93-17-7(1) to the adoption statutes. That section states: “No infant shall be adopted to any person if a parent whose parental rights have not been terminated under the Mississippi Termination of Parental Rights Law (MTPRL), after having been summoned, shall appear and object thereto before the making of a decree of adoption.” Simply put, now all TPRs proceed under the MTPRL.
Another change was to MCA § 93-15-105. Added is subsection (1), which says that if the youth court has taken jurisdiction over an abused or neglected child, it has original exclusive jurisdiction over any TPR proceeding as to the parents of that child. In the case of M.A.S. v. MDHS, 245 So.3d 410, 415 (Miss. 2018), the MSSC held that:
¶ 17. There is also no longer competing jurisdiction between youth court and chancery court over parental-rights terminations involving abused or neglected children. House Bill 1240 added a new Section 93–15–105, which covers jurisdiction and venue of termination-of-parental-rights proceedings. Miss. Code Ann. § 93–15–105(1) (Supp. 2017). Under Section 93–15–105(1), “[t]he chancery court has original exclusive jurisdiction over all termination of parental rights proceedings” with one important exception. In direct contradiction to Watts, Section 95–15–105(1) unequivocally provides that a “county court, when sitting as a youth court with jurisdiction of a child in an abuse or neglect proceeding, has original exclusive jurisdiction to hear a petition for termination of parental rights against a parent of that child.” Miss. Code Ann. § 93–15–105(1) (Supp. 2017) (emphasis added).
¶ 18. This means that when a petition for adoption is filed in chancery court— as it must be [Fn omitted] — and the parents of that child contest the adoption, amended Section 93–17–7(1) now requires that the parents’ rights be terminated under the MTPRL before the contested adoption can be granted. The MTPRL provides that the chancery court also has jurisdiction over the termination proceeding unless the youth court already has jurisdiction over the child in an abuse or neglect proceeding. Miss. Code Ann. § 93–15–105(1) (Supp. 2017). If the youth court already has jurisdiction over the child in an abuse and neglect proceeding, then the youth court has exclusive original jurisdiction to hear a petition to terminate parental rights. So a person seeking to adopt the abused or neglected child no longer can simply seek the termination of the parents’ rights as part of her adoption petition. Instead, the MTPRL makes clear she must first petition for the termination of parental rights in youth court, before she can seek an adoption in chancery court.
Watts on Westlaw now flies a red flag.
It’s not all that uncommon for foster parents who have gotten a child by youth court action to want to adopt their child. As long as youth court retains jurisdiction, however, the prerequisite TPR must be in that court, and keep in mind that the goal in youth court is reunification, which is not necessarily the goal of chancery court.
A Tax Benefit for Adoptions
August 22, 2018 § Leave a comment
For those of you who handle adoptions, there is good news you can pass on to your client(s):
HB 1566, effective January 1, 2018. increases the income tax credit for adoption expenses from $2,500.00 for each dependent child legally adopted to $5,000.00 for each child legally adopted. An income tax credit is also allowed in the amount of $5,000.00 for each child legally adopted through the Mississippi Department of Child Protection Services.
A taxpayer may claim only one of these credits for each child adopted. The carry forward under current law for the adoption expense credit is three years. The carry forward is increased to five years for the adoption care credit and is five years for the credit for an adoption through the Mississippi Department of Child Protection Services. The credits are repealed effective January 1, 2020.
This is an advantageous benefit since a credit reduces taxes dollar-for-dollar.
The bill was not signed until April, but the January effective date means that it is available for 2018 filings.
Adoption and Joinder of the Spouse
July 31, 2018 § Leave a comment
Yesterday we visited the adoption case In re DDH: Gray and Dotch, focusing on the decision as it relates to termination of parental rights. There is another component to the decision that needs addressing: the requirement in MCA 93-17-3 that a married person seeking to adopt must be joined by his or her spouse.
In 99.9% of adoption cases, the spouses are joined in the case because they are both seeking to adopt the child. But what about where only one spouse is wanting the adoption? Does the other spouse still have to join?
In DDH, Gray, the adoptive father was married to a woman other than Dotch. Gray petitioned only in his name, presumably because it was only he seeking to adopt while keeping intact Dotch’s rights as the mother. Recall that Dotch had always acted in loco parentis toward the child because he and Dotch both believed for most of her life that he was the father. Even after they discovered that he was not, however, he continued his in loco parentis role.
In its opinion, the court addressed the question whether Gray’s wife should have joined in his petition:
¶13. The first section to consider is Section 93-17-3(4). Section 93-17-3(4) provides in pertinent part that “[a]ny person may be adopted in accordance with the provisions of this chapter in termtime or in vacation by an unmarried adult or by a married person whose spouse joins in the petition.” Miss. Code Ann. § 93-17-3(4) (emphasis added). The petitioners argue that Gray’s wife should not have to join the petition, and the statute “limits the rights of a married person to adopt without his/her spouse being joined as a party to the adoption.”
¶14. Section 93-17-3(4)sets out requirements for an adoption, detailing the jurisdiction and venue for adoption proceedings and detailing the petition’s requirements—such as the joinder of both spouses when married and a doctor’s or nurse practitioner’s certificate of the health of the child. Miss. Code Ann. § 93-17-3(4). The section also governs home studies for adoptions, changing the child’s name, and additional considerations for jurisdiction. Id.
¶15. Section 93-17-3 is unambiguous. The requirements are clear, and we see no reason why they should not be followed in the instant case. Simply put, Gray’s spouse must join him in his petition to adopt D.D.H. Miss. Code Ann. § 93-17-3(4). The plain language of Section 93-17-3(4) does not provide that the joinder of Gray’s spouse means that she will receive any custodial or parental rights [fn 2] or that she is adopting the child. It requires only that she join in Gray’s request.
[Fn 2] Gray’s wife would merely assume the role of step-parent.
¶16. In an adoption proceeding, the best interests of the child are paramount, and the Court reviews adoptions to ensure the chancellor considered the best interests of the child. In re Adoption of D.N.T., 843 So. 2d 690, 706 (Miss. 2003); In re Adoption of P.B.H., 787 So. 2d 1268, 1277 (Miss. 2001). The requirement to include the spouse on the adoption petition, even if the spouse is not the adopting party, enables the best interests of the child to be served. If the spouse is joined, the chancellor would then have the opportunity to consider and, if needed, question the spouse who regularly would be in the adopted child’s life as a step-parent. Further, requiring the spouse to join provides the spouse notice of the adoption petition—as the final decree could possibly affect the spouse’s rights and the inheritance rights of the spouse’s children. Therefore, Section 97-13-3(4)’s requirement to include Gray’s spouse in the adoption proceeding ensures that the best interests of D.D.H. are considered and should be followed in this case.
In Part II of its opinion (¶¶30-33), the court declined to rule on the statute’s constitutionality.
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.
TPR and Adoption Post-2016
March 22, 2017 § Leave a comment
Late note: The Governor yesterday signed into law SB 2342, which made some adjustments to the TPR statute. The most significant to most of us is probably that a GAL is discretionary with the court in voluntary-release cases.
Two recent cases handed down from our appellate courts address TPR and adoption decisions by chancery courts. You can read the cases at these links:
Doe v. Doe, COA, decided February 7, 2017
Hartley v. Watts, MSSC, decided March 2, 2017
These decisions are mostly of historical interest now, because, effective April 8, 2016, the Mississippi Legislature completely revamped the TPR and adoption statutes. Both of the above cases were decided by chancellors under the pre-2016 law.
I say the decisions are “mostly of historical interest” because some of the old grounds for TPR and adoption are still viable under the new law, so you might find something helpful in either or both of them in a post-2016 case.
Most every district I know is treating cases filed before the new statute but not yet final as coming under the new statute. That’s because it’s not worth a reversal to discover that it should have been done that way in the first place. In most cases, that means going back to the drawing board and starting from scratch, or pretty close to scratch.
If you have been living under a rock and haven’t even realized that the law has changed, I encourage you to study the new statutes carefully. Those forms you have stored in your computer that you last revised in 2007 simply won’t do the job anymore. Oh, and by the way, there are some tweaks to the statutes pending right now in the legislature that will change a few things in the 2016 law.
A couple of lawyers asked why I haven’t posted anything here about the new law. Well, for one thing, I want to see how it settles into our practice and how it gets implemented in most places. That process is ongoing. I think the best way to approach it is to tiptoe through it with your chancellor, finding out for yourself what will and will not fly in your district.
For another thing, it would take several posts to explicate the new law, and that’s without any case law to help interpret. You can read the statutes and draw your own conclusions as well as I can. I think it’s better to let the cases come down from on high with guidance for us here at ground level. In the meantime, we are all kind of feeling our way along.
Standing to Pursue a Rule 60 Motion
October 10, 2016 § Leave a comment
We discussed here last week the case of Doe v. Smith, the adoption case in which an adoption judgment was set aside for fraud on the court, and which was affirmed by the MSSC. The fraud was the intentionally false statements in the Consent to the adoption and in the testimony of the natural mother, Katy, that she did not know who was the natural father of the child to be adopted.
One of the issues raised on appeal by Catherine, the adoptive mother, was that Stan, the natural father, had no standing to file a R60 motion assertng the fraud issue in the adoption for the reason that he was not a party to the adoption.
In its decision, rendered September 22, 2016, the court rejected Catherine’s argument. Justice Maxwell for the court:
¶20. Catherine is correct that Stan was not a party to Matthew’s adoption. Honing in on this fact, she argues that Rule 60(b)(1) relief from the adoption decree is unavailable to Stan because he was a nonparty. See In re Adoption of A.S.E.L., 111 So. 3d 1243, 1249-51 (Miss. Ct. App. 2013). However, Catherine is viewing Katy’s misdeeds as “fraud . . . of an adverse party”—the type of fraud discussed in that case. Id. But Katy’s deceptions and omissions were not mere frauds of an adverse party. Rather, the judge found they had caused a “fraud upon the court.” M.R.C.P. 60(b)(6). And Rule 60(b)(6) authorizes courts to hear “independent actions”—such as the one filed by Stan—to set aside a “judgment for fraud upon the court.” M.R.C.P. 60(b)(6).
¶21. Rule 60(b)(6) does not require that an independent action be labeled as such. Hester v. State, 749 So. 2d 1221, 1223-24 (¶ 12) (Miss. Ct. App. 1999) (citing Bankers Mortg. Co. v. United States, 423 F.2d 73, 77, 81 n.7 (5th Cir. 1970)). And, as federal treatment of a similar rule shows, “when the 60(b) relief is sought by an independent action, there is no time limit save laches on when the action may be brought.” Id. (quoting In re Casco Chem. Co., 335 F.2d 645, 652 (5th Cir. 1964)).
¶22. The independent-action principle has been applied by the court of appeals to a
nonparty’s complaint to set aside a judgement.[Fn 17] See In re Estate of Pearson, 25 So. 3d 392, 395 (¶ 14) (Miss. Ct. App. 2009). In Pearson, an unwed, natural father petitioned the chancery court to set aside the final judgment closing his minor daughter’s estate. The father did so because the natural mother fraudulently excluded him as an heir. Id. at 393 (¶ 3). The natural mother, in the petition to determine heirs, swore she was unaware of the natural father’s name and averred the natural father was deceased. Id. at 393 (¶ 2). As in Pearson, Stan, a nonparty, filed an action raising the natural mother’s falsities as a fraud upon the court. And while Stan did file his petition under the same cause number as Matthew’s adoption, he named new parties to the proceedings and issued numerous summons to each named party.
[Fn 17] Cf. Byrd v. Woods, 90 So. 3d 666, 671-72 (¶ 24) (Miss. Ct. App. 2012) (noting that Hester v. State “approved” independent actions under Rule 60(b)(6) in Mississippi).
¶23. But Catherine argues that Stan’s only basis for standing is under Mississippi Code
Section 93-17-5(3). And this would require the chancellor to make findings under
Mississippi Code Section 93-17-6(4) to determine whether Stan was entitled to notice and to be made a party under Section 93-17-5. Catherine is correct that these statutes previously have been used by unwed, putative fathers to enter an appearance and contest an adoption. But again, there is a distinction between “fraud . . . of an adverse party” and “fraud upon the court.” Stan was not trying to establish his right to notice or object to ongoing adoption proceedings. He was arguing to set aside a final adoption obtained through fraud. And when compelling circumstances exist, Rule 60(b)(6) authorizes trial judges to set aside judgments obtained by a fraud upon the court.
¶24. We find that Stan’s petition was an independent action under Rule 60(b)(6). And as an independent action, the chancellor had authority to rule on Stan’s petition based on fraud upon the court.
So there is a right of a non-party to bring an independent action under R60(b)(6) where “compelling circumstances exist.”
I don’t know about you, but I find it hard to wrap my mind around Catherine’s argument. Stan’s omission from the original action was a direct result of fraud that concealed his parenthood and, ergo, his necessity to be joined as a party, from the court. The fraud resulted in a proceeding in which he was not invited to participate, and which resulted in a judgment of which he had not notice. So, under Catherine’s theory, he now must be barred from filing a R60 motion because he did not participate as a party, even though that was due to fraud? That makes no sense to me.
A Tragic Fraud on the Court
October 3, 2016 § 1 Comment
It’s hard to imagine a legal proceeding more tragic and heart-wrenching than the setting aside of an adoption. Most chancellors go to extremes to ensure that there are no flaws in the proceeding that might jeopardize the finality of an adoption judgment.
In the recent MSSC case, Doe v. Smith, decided September 22, 2016, the chancellor entered an adoption judgment based on the natural mother’s statement in the Consent and in her sworn testimony that she was unaware of the natural father of her child, Matthew. Stan, the natural father, however, learned of the adoption and filed a R60(b)(6) motion to set the judgment aside for fraud. At the hearing on that motion, the natural mother, Katy, admitted on the witness stand that she had lied, the chancellor set aside the adoption judgment.The adoptive mother appealed. One of her grounds was that the chancellor erred in setting aside the judgment. Justice Maxwell, writing for a unanimous court, addressed the argument this way:
¶14. A fraud upon the court is an intentional misdeed that “vitiates a judgment” because “the court is misled and deceived” about the facts it relies upon when administering the law. Trim [v. Trim], 33 So. 3d [471,]at 477 (¶ 15) [(Miss. 2010)] (quoting Brown v. Wesson, 74 So. 831, 834 (Miss. 1917)). Rule 60(b)(6) gives judges broad authority to set aside judgments entered, resulting from such fraud. Trim, 33 So. 3d at 475 (¶ 7) (citing M.R.C.P. 60(b)(6) and Tirouda v. State, 919 So. 2d 211, 214 (Miss. Ct. App. 2005)). However, to qualify as “fraud upon the court,” there must be exceptional and compelling circumstances and the deceptive act(s) must be material and extreme. Not just any falsity or misstep, even if intentional, is enough for relief.
¶15. “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” [Fn13] Wilson v. Johns-Manville Sales Corp., 873 F. 2d 869, 872 (5th Cir. 1989) (quoting Rozier v. Ford Motor Co., 573 F. 2d 1332, 1338 (5th Cir. 1978)). Mere nondisclosure of pertinent facts to the court “does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Trim, 33 So. 3d at 477-78 (¶ 16) (quoting Kerwit Med. Prods., Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 n.8 (5th Cir. 1980)). Furthermore, the fraud must be proved by clear and convincing evidence. Moore v. Jacobs, 752 So. 2d 1013, 1017 (Miss. 1999) (citing Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984)).
[Fn 13] See also In re Guardianship of McClinton, 157 So. 3d 862, 870 (¶ 17) (Miss.
2015) (Rule 60(b)(6) is a “catch all” provision for exceptional and compelling
circumstances) and Roberts v. Lopez, 148 So. 3d 393, 399 (¶ 12) (Miss. Ct. App. 2014) (the substantial misrepresentation of facts on which a judgment is based constitutes a fraud on the court).
¶16. Here, the chancellor found Katy’s deceptive acts and omissions—which she admitted she knowingly made—met these high marks. Katy had filed a voluntary, sworn joinder and consent to Matthew’s adoption.[Fn 14] And in it, she represented she was unaware of Matthew’s biological father’s name, identity, or address. But under oath at the April 21, 2015, hearing, Katy admitted to lying about Matthew’s father’s identity in her consent. She also admitted she lied when testifying at Matthew’s adoption proceeding. She said she did so because she knew Stan would be a poor parent and caregiver.
[Fn 14] Under Mississippi Code Section 93-17-5, Katy was required to either provide her consent to the adoption or appear and contest it. Miss. Code Ann. § 93-17-5(1), (4) (Rev. 2013).
¶17. We have held that the effective administration of justice requires our chancellors have accurate financial information to distribute marital assets during divorce. See Trim, 33 So.3d at 477-78 (¶¶ 16, 17) (finding a party who filed a substantially false, statutorily required Rule 8.05 statement committed a fraud upon the court). So certainly, an intentional fraud aimed solely to circumvent a natural parent’s statutorily mandated consent [Fn 15] to an adoption undermines the effective administration of justice.
[Fn 15] See Miss. Code Ann. § 93-17-5(1), (4) (Rev, 2013).
¶18. The chancellor found that Katy knew who Matthew’s father was after the first
paternity test excluded her husband. And she withheld this information from the court and all parties involved. He held that Katy knowingly had misled the court and all parties through her testimony, affidavit, and nondisclosures regarding Matthew’s paternity.
¶19. And because the heart of Katy’s actions was designed to deceive the court, by lying about and omitting material facts to trick the court into granting a supposed uncontested adoption, the chancellor properly found that a fraud was committed upon his court. [Fn 16]
[Fn 16] The requirement that fraud, misrepresentation, or other misconduct be proved by clear and convincing evidence is moot here, since Katy admitted her fraud. See Moore v. Jacobs, 752 So.2d 1013, 1017 (¶ 18) (Miss. 1999).
There was nothing in the record to show that either the adoptive parents or their attorney knew of Katy’s false statements.
A few observations:
- Adoption proceedings underwent a change effective April 16, 2016. You need to familiarize yourself with those changes if you are going to handle any adoptions. This decision is under the old adoption procedure.
- The main thing to take away here is how easy it is for parties who are unencumbered by ethical considerations to lie when it suits them. As a lawyer you should be especially diligent and inquisitive when a natural mother claims not to know who was the father.
- This case underscores how ruinous a fraud on the court can be. Imagine the joy of the adoptive parents when they walked out of the courthouse with their new baby; and imagine their devastation when the child was taken away from them some nine moths later. That’s why lawyers should take extra care, as much as they can, to make sure that something like this does not happen.
A similar thing happened in my court. The mother signed a Consent stating that she did not know who was the natural father, and the adoption agency gave the child to the adoptive parents pending the adoption. Before the adoption could be presented, however, the natural father intervened and objected to the adoption. The adoptive parents conceded the inevitable and surrendered the child to the father.
Another issue raised on appeal was whether the natural father had standing to file a R60 motion in the case, since he was not a party. That’s a subject for another post.
The Same-Sex-Adoption Ban in Mississippi
August 25, 2015 § Leave a comment
I say “in Mississippi” above because, as I understand it, Mississippi is the lone state with a same-sex-adoption ban remaining on the books. That prohibition is now being challenged in federal court.
You can find that observation, along with some others by Anderson on Obergefell and its fallout, at this link.
What Your Adoption Decree Should and Should Not Include
July 14, 2015 § Leave a comment
DO include …
- An adjudication that the six-month interlocutory, or waiting, period is not necessary or required for the benefit of the court, if that is waived by the judge.
- If a home study is ordered, specify a date to return to court for completion of the adoption.
- If an interlocutory order is entered, spell out its terms. [MCA 93-17-11]
- That the child shall inherit from and through the adopting parent(s) and their children, and they shall inherit from the child, all as if the child had been born to the adopting parties.
- That the child, adopting parents, and kindred are vested with all rights, duties, and obligations as if the child had been born to the adopting parents.
- If the name of the child is to be changed, the name that will appear on the new birth certificate.
- That the natural parents and natural kindred of the child shall not inherit from the child, except as to a parent who is the spouse of the adopting parent. The right of the child to inherit from the natural parents is not required to be terminated.
- That the parental rights of the natural parent(s) are terminated, except as to a natural parent who is the spouse of the adopting parent. [All per MCA 93-17-13]
Do NOT include …
- The name of the natural parent or parents who are giving up the child.
- The original name of the child. [Both per MCA 93-17-27]
- And while we’re at it, never list the name of the child or natural parent(s) in the style of the case; refer only to “the child named in the petition.” Only the names of the petitioners should be in the style of the case. [MCA 93-17-27]
All of the above is summary, shorthand language for the specific statutory mandates. As always, you should track the language of the statutes in your decrees to ensure that you meet their requirements.
The Better Chancery Practice Blog 