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.

Must There be a Pending Adoption for TPR to Proceed?

March 25, 2015 § 2 Comments

We discussed the TPR statute yesterday in the context of the MSSC’s holding in Chism v. Bright that the statutory prerequisites in MCA 93-15-103(1) must be met before the chancellor may proceed to consider the grounds for termination of parental rights.

The last of those prerequisites is

… 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 …

In the COA case Farthing v. McGee, decided February 17, 2015, the chancellor ruled in part in a TPR case that the statute required a pending adoption action in order for TPR to proceed. The COA disagreed. Judge Maxwell wrote for a unanimous court, with Judge James specially concurring:

 ¶20. We also note the chancellor believed a pending adoption petition was a prerequisite to considering grounds for termination. But while an apparent concern of the statute is when a parent’s rights may be terminated for a child to be adopted, there is no statutory mandate that an actual petition must be filed before termination is sought. See Miss. Code. Ann. § 93-15-103(1). Instead, our supreme court recently reemphasized the court must consider if “adoption is in the best interest of the child” as one of the three prerequisites to considering grounds for parental-rights termination. Chism v. Bright, 152 So. 3d 318, 323 (¶15) (Miss. 2014) (emphasis added). Our high court made no mention of the necessity for a pending adoption petition.

¶21. On remand, the chancellor shall consider the GAL’s report when addressing the prerequisites of section 93-15-103(1), as discussed and emphasized by the supreme court in Chism, 152 So. 3d at 323 (¶15). If those prerequisites are deemed met, the chancellor shall address the abandonment-related grounds raised in Kristen’s termination request. [Footnote omitted]

So, until the supremes speak further on this topic, the rule is that the trial court must take into account whether adoption is in the best interest of the child, but no adoption action needs to have been filed.

This is the first case of which I am aware in which the courts have looked at TPR through the prism of Chism ( I know, I did that on purpose). Judge Maxwell’s opinion specifically mentions the abandonment language of prerequisite 1, which I discussed yesterday. That’s comforting and lends a little more weight to the idea that TPR might not be as moribund as we thought.

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.

Is TPR Now Extinct?

January 8, 2015 § 11 Comments

Termination of parental rights (TPR) is a statutory creature embodied in MCA 93-15-103 and the surrounding code sections.

I think it’s fair to say that most practitioners and trial court judges focus on the statutory grounds, and, if they are supported by the proof, proceed to termination.

That’s what the chancellor did in the case of Chism v. Bright, which was affirmed by the COA on May 21, 2013. The chancellor found that the Jimmy Ray Chism’s drug and alcohol addictions, abuse of drugs in the presence of the child, instability, and brushes with the law were enough to warrant termination of his parental rights with respect to his son. Jimmy petitioned for cert, which was granted by the MSSC.

In its December 11, 2014, opinion reversing the COA, the high court pointed out that there is much more to TPR than merely proving that one or more of the statutory grounds exist. Justice Lamar, for a unanimous court, laid it out this way:

¶13. Parents have a “fundamental liberty interest . . . in the care, custody, and management of their child” that cannot be taken away without clear and convincing evidence of the required statutory grounds for termination of parental rights. Santosky v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see also J. Jackson and M. Miller, Encyclopedia of Mississippi Law § 78:39 (2002) (citing Miss. Code Ann. § 93-15-103(3)). State statutes providing for the termination of parental rights are subject to strict scrutiny and “[c]ourts may not add to the enumerated grounds.” Deborah H. Bell, Bell on Mississippi Family Law 409 (2005) (citing Gunter v. Gray, 876 So. 2d 315 (Miss. 2004)); see also Rias v. Henderson, 342 So. 2d 737, 739 (Miss. 1977) (holding that statutes affecting fundamental constitutional rights are subject to strict scrutiny).

¶14. This Court has stated that “[b]ecause parental rights are so important,” the “circumstances under which [those rights] can be terminated by the government” are “sharply limit[ed.]” Gunter v. Gray, 876 So. 2d at 317. Title 93, Chapter 15 of the Mississippi Code sets out the requirements and procedure for the termination of parental rights. See Miss. Code Ann. §§ 93-15-101 through 93-15-111 (Rev. 2013).

¶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).

¶16. Here, it is undisputed that Johnny was not “removed from the home of his natural parents.” And we also do not find from this record that Jim is “unable or unwilling” to care for Johnny. First, the chancellor’s finding that Jim was “unable to assume minimally acceptable care” [Fn 6] of Johnny is belied by the fact that he also allowed Jim to have contact with Johnny after he is sober for six months. Neither Abby nor anyone else objects to this. Simply because Jim might not be the best choice to be Johnny’s full-time custodial parent certainly does not mean that he is “unable to care” for Johnny. This Court “has never allowed termination of parental rights only because others may be better parents.” W.A.S., 949 So. 2d at 35. Second, it is undisputed that Jim wants to be a part of Johnny’s life and that they have a very loving relationship, which evidences that Jim is not unwilling to care for him.

[Fn 6] To be clear, the chancellor was analyzing under Section 93-15-103(3), instead of under Section 93-15-103(1).

¶17. Moreover, we affirm the overarching premise that termination of parental rights is a last resort. This intent is evidenced by the Legislature in Section 93-15-103(4), which states:

Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

Miss. Code Ann. § 93-15-103(4) (Rev. 2013) (emphasis added). In short, Abby has not proven the statutory prerequisites found in Section 93-15-103(1) that must be met. As such, we decline to address the specific ground for termination analyzed by the chancellor, or whether termination is in Johnny’s best interest. For these reasons, we reverse the termination order and remand this case to the Union County Chancery Court for further proceedings consistent with this opinion.

So there you have it. If you have pending or contemplate filing a TPR action, you need to backtrack and see whether your case satisfies the three prerequisites. Without all three, you fail.

A few thoughts:

  • ” … removed from the home of his natural parents …” by whom? I would presume DHS, which makes this section inapplicable in most chancery cases. If the section is not limited to DHS removal, did the chancellor not in effect order that the child be removed from Jimmy’s home? Or does the strict construction of the statute require that the child be removed from the home of both parents before it can be invoked? That’s what it says.
  • Our child custody and support statutes are littered with amendments made to accommodate DHS practices, with resulting confusion. I am not familiar with the legislative history of the TPR statutes, but that could be the source of the convoluted language of section 103. Or, it could be that the legislature actually intended to make TPR well-nigh impossible. If that is what they intended, then the statute is well-crafted.
  • This holding was foreshadowed to some extent by the COA’s 2012 decision in LePori v. Welch, about which I posted previously, in which Judge Maxwell pointed out that there is no cause of action for TPR unless an adoption is contemplated.   
  • I think this effectively puts an end to most TPR cases in chancery court, save for those in which TPR is sought as a precursor to adoption. If you see it differently, I would like you to comment with some persuasive argument to the contrary.

How to Address the GAL Report

October 15, 2014 § 2 Comments

There are three types of cases in which a chancellor is required to appoint a guardian ad litem (GAL):

  • MCA 93-5-23 requires appointment of a GAL “when a charge of abuse or neglect arises in the course of a custody action.”
  • MCA 93-15-107 requires a GAL for the child(ren) in termination of parental rights (TPR) cases.
  • MCA 93-17-8 requires a GAL for the child(ren) in a contested adoption.

In other cases the court may appoint a GAL whenever the court deems it necessary to protect the interests of a child or vulnerable adult.

The chancellor is never required to follow or adopt the recommendations and findings of a GAL, but when she does not do so there are certain requirements that the judge must meet in rendering her opinion.

In the October 9, 2014, MSSC case, Borden v. Borden, Chief Justice Waller, for the unanimous court, spelled it out:

¶11. In child-custody cases where there are allegations of abuse or neglect, courts must appoint a guardian. Miss. Code Ann.§ 93-5-23 (Rev. 2013); Floyd v. Floyd, 949 So. 2d 26, 28 (Miss. 2007). And when the appointment is mandatory, chancellors, in their findings of fact, must include at least a summary of the guardian ad litem’s recommendations. Id. While a chancellor is not bound by the guardian ad litem’s recommendations, “if the court rejects the recommendations . . . , the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id.; S.N.C. v. J.R.D., Jr., 755 So. 2d 1077, 1082 (Miss. 2000).

¶12. In the current case, Mary Jane raised her concerns that the children might have been sexually abused. Accordingly, the chancellor appointed a guardian ad litem. The guardian ad litem conducted an investigation into the child-abuse claims and prepared a recommendation regarding custody of the children. The guardian ad litem found no evidence of abuse, and after an Albright analysis, determined that Mary Jane should be awarded custody.

¶13. When the guardian ad litem’s appointment is mandatory, as in this case, the chancellor must include a summary of the guardian ad litem’s recommendations in his or her findings of fact and conclusions of law. S.N.C., 755 So. 2d at1082. And “when a chancellor’s ruling is contrary to [that] recommendation . . .” the court must state “the reasons for not adopting the . . . recommendation . . . in the findings of fact and conclusions of law.” Id. While the chancellor in the current case acknowledged the guardian ad litem’s recommendation, he did not provide a summary of the report or a summary of his reasons for rejecting the guardian ad litem’s recommendation. Therefore, we find the chancellor erred in failing to do so.

The court reversed on this and another ground, and remanded the case for proceedings consistent with the opinion.

If you have a case involving a GAL, and the judge rules contrary to the GAL’s recommendations, be sure that the court’s findings include both a summary of the GAL’s findings and the court’s reasons for not following the GAL’s recommendations. Whether the appointment was mandatory or not, I think it’s the best practice. If the judge neglected to do that in his opinion, file a timely R59 motion and ask the court to add his findings. Don’t do it and you might just get a free pass for a retrial after a brief detour to the COA.

Termination in the Best Interest

July 23, 2013 § Leave a comment

The COA case of In Re: Adoption of H.H.O.W., decided March 12, 2013, illustrates the important principle at work in termination-of-parental-rights cases that it is the best interest of the child, and not mechanical application of the termination statutes, that will dictate the result.

In this case, the unmarried parents, Gavin and Brigit, had left their nine-month-old son, Henry, in the care of the father’s sister and her husband for more than three years, during which they had limited contact with the infant. When the caretakers filed to terminate parental rights of the parents and for adoption, a contest ensued and the chancellor ultimately found that the failure of the parents to visit the child had caused a “substantial erosion” of the parent-child relationship. The COA affirmed:

¶9. Relevant to the case at hand, section 93-15-103(3) provides:

Grounds for termination of parental rights shall be based on one or more of the following factors:

….

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or

. . . .

(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .

The chancellor’s decision was grounded in subsection (3)(f), a finding of “substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s prolonged and unreasonable absence [and] unreasonable failure to visit.” This was supported by the uncontested fact that Brigit and Gavin failed to visit Henry for approximately three years, beginning when the child was only nine months of age. In response, Gavin and Brigit point to evidence of communication – they called approximately every two or three weeks – but there was also significant evidence showing that these attempts had been ineffective in preserving the parent/child relationship. We note that the statute provides that the erosion may be a result of either “prolonged and unreasonable absence” or “unreasonable failure to visit”; the law recognizes that communication in and of itself is not necessarily sufficient to preserve the parent/child relationship. Moreover, Gavin admitted in his testimony that, until Henry learned to talk, they did not speak directly with him on the phone, but instead Gavin spoke with Alexis about Henry …

The chancellor found it more credible that the caretakers had not withheld or alienated the child, and that the natural parents had been derelict in maintaining the relationship. This segment of the chancellor’s bench opinion was telling:

[Gavin and Brigit] wanted me to watch . . . [a video recording of some of their visits with Henry] . . . . [W]hat I see is a little boy playing with a man. What I see is a little boy . . . playing with another little girl. I don’t see a father and son relationship. It just could not possibly exist. That bond could not have been formed . . . [even if, i]ntellectually, [Henry] may understand that [Gavin] is his father . . . .

It’s easy to fall into the belief that one must simply prove one or more of the statutory grounds, such as failure to support for the prescribed period, or failure to maintain contact for the presecribed period, or any of the other elements, before the court may grant a termination of parental rights. This case points out an important point beyond mere mechanical application of the statute: that it is the impact of the parental conduct that matters more than simply ticking off the requirements of the statute. Where the parental behavior has caused the destruction of the relationship, the requirement of the statute has been satisfied.

IS THERE AN INDEPENDENT CAUSE OF ACTION FOR TPR?

October 1, 2012 § 5 Comments

Termination of parental rights pursuant to MCA 93-15-103 has long been treated, at least in this chancery district, as an independent cause of action that may be invoked whenever the criteria of 93-15-103(3) are met.

The COA decision in LePori v. Welch (discussed here in a previous post dealing with other points), decided June 26, 2012, though, calls that theory into question.

In his opinion for the court, Judge Maxwell addresses the appellant’s argument that the chancellor failed to address the “substantial erosion” factor set out in 93-15-103(3)(f). He said, beginning in ¶5:

But the grounds for termination in section 93-15-103(3) are to be considered only when the circumstances of section 93-15-103(1) are met:

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).

¶6. It is clear from the plain language of section 93-15-103—as well as the cases that have applied this section—the concern of the statute is when a parent’s rights may be terminated in order for the child to be adopted. E.g., S.R.B.R. v. Harrison County Dep’t of Human Servs., 798 So. 2d 437, 445 (¶32) (Miss. 2001) … [Emphasis in original text]

The above language is not the actual holding of the case, but it is about as clear a statement that you will find interpreting the intent and purpose of 93-15-103(1), which is the threshold statute for TPR. What Judge Maxwell is saying, in my opinion, is that there is no cause of action for TPR that is independent of an adoption. TPR is done ” … in order for the child to be adopted … ,” in Judge Maxwell’s own words.

I wonder, though, what this language of the statute means in light of that interpretation: ” … 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 …” What about where the court finds that adoption is not needed to secure a stable placement? Does that cancel out the TPR action if all the criteria are proven?

My emphatic answer is … I don’t know. What I do know is that nine judges of the COA joined in Judge Maxwell’s opinion, and that one concurred ” … in part and in the result without separate written opinion,” making it 99% unanimous. So the mind of the COA on the subject would appear to be clear.

I also know that this would appear to change the way we have done business in this district, and maybe in yours, too. Stay tuned for further developments.

AN ADOPTION PUZZLER

June 21, 2012 § 8 Comments

Here’s an adoption scenario I was presented with recently:

Natural father is convicted of a felony and sentenced to a long term in Parchman. Natural mother is left at home with one child, and is struggling financially. She does not want a divorce. Paternal grandfather, 72 years old and a widower, is willing to help by adopting the child. Natural dad will sign a consent. Jurisdiction and venue are proper. The adoption will allow the child to be covered by grandpa’s health insurance, and will have the added bonus of providing SS benefits for the child in the event that gramps kicks the bucket. Mom wants to continue to be the mom, so the adoption judgment will terminate natural dad’s parental rights, substitute the paternal grandfather for the natural father, and leave the mom in her position as mom. As the lawyer helpfully points out, it’s a win-win-win situation. Right?

You’re the special chancellor. How do you rule? What’s the basis for your ruling?

Answer later.

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