A Second Look at the TPR Prerequisites
March 24, 2015 § 2 Comments
We talked here earlier in the year about the MSSC’s December 11, 2014, ruling in Chism v. Bright that held, in essence, that until the statutory prerequisites are met, the chancellor may not proceed to examine whether the statutory grounds have been met.
Here’s what the court said:
¶15. As mentioned above, the chancellor found that Jim’s parental rights should be terminated because he exhibited “ongoing behavior which would make it impossible to return the minor child to his care and custody because he has a diagnosable condition, specifically alcohol and drug addiction, unlikely to change within a reasonable time which makes him unable to assume minimally, acceptable care of the child . . . .” But neither the chancellor nor the Court of Appeals addressed subsection (1) of Section 93-15-103, which sets out three prerequisites that must be met before the court may invoke any specific ground for termination. Section 93-15-103(1) states:
(1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
Miss. Code Ann. § 93-15-103(1) (Rev. 2013) (emphasis added). See also In Re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 428 (Miss. 2009). This Court previously has categorized the three prerequisites in subsection (1) as follows:
(1) the child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child; (2) relatives are not appropriate or are unavailable; and (3) adoption is in the best interest of the child.
Leverock, 23 So. 3d at 428 (emphasis added).
The Supreme Court concluded that, since the child had not been removed from Jimmy Chism’s home as provided in prerequisite 1, it was improper for the chancellor to proceed to consider the grounds.
But are there only three prerequisites, or are there really three with one having an alternative? Notice that it is the supreme court that numerically categorized the prerequisite section, not the legislature. TPR is purely a creature of statute. The rules of statutory construction require that we give effect to every provision and try to harmonize language that may appear not to fit. Here’s how I would read section 103(1):
1. (a) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or
(b) the parent is unable or unwilling to care for the child,
2. relatives are not appropriate or are unavailable,
3. and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them,
the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
The court actually addressed 1(b) in its opinion at ¶ 16, finding that Jimmy had not been proven to have been unable or unwilling g to care for the child.
So to the extent that I rang the alarm bell over the impending doom of our TPR statute, I unring that bell for now, subject to how the courts will apply this statute in the wake of Chism. There was a recent case that did address it, which I will talk about here tomorrow.
For now, though, I wish the court would clarify that there is an alternative in prerequisite 1 — abandonment — that is actually the most common and customary basis for TPR.
THE BENEFIT OF A WHOLESOME AND STABLE ENVIRONMENT
November 28, 2012 § Leave a comment
MCA 93-5-24(1)(e)(i) provides that, if the court finds both parents have abandoned or deserted a child, it may award physical and legal custody to ” … [t]he person in whose home the child has been living in a whoesome and stable environment.” And the case of Lucas v. Hendrix, 92 So.3d 699, 705-6 (Miss. App. 2012) says that once the chancellor has found that both parents have deserted the child, custody may be awarded per the statute without first addressing the Albright factors.
Those little gems are in ¶ 17 of the decision in Hamilton v. Houston, decided by the COA November 6, 2012.
In that case, the chancellor found that both of the natural parents had deserted the child. Once he made that finding, the chancellor did go through an Albright analysis, the result of which was to award custody of a minor child to the paternal grandparents over objection of the mother. The COA upheld the chancellor’s decision, and several points raised in Judge Maxwell’s opinion are ones you should file away for future use:
- Desertion involves forsaking a person to whom one is legally obligated, or forsaking or avoiding one’s duty to that person. In re Leverock & Hamby, 23 So.3d 424, 429-30 (Miss. 2009).
- Abandonment is relinquishment of a right or claim (¶ 17).
- A finding of either abandonment or desertion by clear and convincing evidence is enough to rebut the natural parent presumption. In re Smith, 97 So.3d 424, 429-30 (Miss. 2012).
- In this case, although both parents paid some support for the child, they both admitted that the money they paid was not sufficient to support him.
- An unusual feature of this case was that the grandparents, who were awarded custody, did not file their own pleadings, but merely joined in their son’s (father of the minor child) petition for custody. The COA held that prayer in the son’s petition that he be awarded custody was adequate to empower the judge to adjudicate the issue in any way that was in the best interest of the child.
The fact pattern in this case should be unhappily familiar to any lawyer who has done much family law in the past several years. It seems that grandparents are more frequently becoming surrogate parents, and chancellors are more often called upon in these cases to be arbiters of the child’s best interest.
It appears to me that these cases are trending toward giving more weight to the quality of the parental relationship and less to the quantity. As in this decision, a parent who, for instance, provides some financial support but forsakes the parental duties of emotional support, presence, attention, and other parenting responsibilities, is at risk for a finding of desertion.
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