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.
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.
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.