Barnett v. Oathout

Decision Date30 October 2003
Docket NumberNO. 2001-CA-01309-SCT.,2001-CA-01309-SCT.
Parties<I>HELEN BARNETT</I> <I>v.</I> <I>CHARLES E. OATHOUT</I>
CourtMississippi Supreme Court

¶ Aggrieved by the Lee County Chancery Court's entry of a final judgment which, inter alia, found that the best interest of two minor children would be served by returning them to their natural father, the minor children's foster mother has appealed to us for relief. Finding that the chancellor applied the wrong legal standard for modification of the prior custody order, we are constrained to reverse the chancellor's decision and remand this case for further consideration by the chancellor.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

Charles E. Oathout (Charles) and Brenda Oathout Newcomb (Brenda)1 were married on March 31, 1994, and three children were born to this union; namely, Tyler, born January 5, 1995, Brendan, born October 27, 1995, and Jessica, born in the summer of 1998.2 Charles and Brenda were divorced on October 22, 1998. Prior to Jessica's birth, Tyler and Brendan were removed from the Oathouts' home under allegations of medical neglect. Both boys suffered severe medical problems, including asthma and hydrocephalus, and neither were properly receiving their breathing treatments at the Oathout home. Both were admitted to the hospital. On April 17, 1996, the boys were placed in the foster home of Helen Barnett (Helen). Tyler was approximately fifteen months old, and Brendan was approximately five and one-half months. Thereafter, Tyler underwent a medical procedure in Memphis to install a shunt due to the hydrocephalus. Brendan has been monitored to see if he will require the same surgery.

¶ In October, 1996, Tyler was returned to Charles's mother, Carolyn Oathout Motley (Carolyn); however, Brendan remained with Helen due to his medical condition. Helen continued to provide Tyler's transportation for medical appointments. In March, 1997, Carolyn found Charles openly using marijuana in Tyler's presence. In April, 1997, Carolyn petitioned the Lee County Youth Court for custody of the boys. Tyler remained with Carolyn; Brendan remained with Helen until June. DHS retained custody. Even though Carolyn had physical custody, the boys frequently stayed with Helen due to Carolyn's work schedule.

¶ In June, 1998, Helen received physical custody of Brendan. Helen and Carolyn had joint physical custody of Tyler. Under this order, Carolyn was to provide twenty-four hours' notice to Helen for weekend visitation of Tyler, and forty-eight hours' notice for weekday visitation. Problems arose because notice was not provided. During mid-1998, the Foster Care Review Board recommended that DHS begin termination of parental rights. Instead, durable legal custody was granted to Helen of both boys in December 1998 pursuant to Miss. Code, § 43-21-609 (Rev. 2000). Charles agreed to the granting of durable legal custody.

¶ Thereafter, Charles and Carolyn initiated the underlying custody proceedings in December of 1998. An Agreed Order of Visitation was entered into in January, 1999. In July, 2000, Charles filed a Motion for Custody Modification. A three-day trial was held in this matter. The chancellor entered a twenty-five page opinion on July 18, 2001, awarding Charles custody of the boys. The chancellor denied reconsideration on August 7, 2001. Helen timely appeals those orders.

STANDARD OF REVIEW

"A chancellor's decision cannot be disturbed `unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or an erroneous legal standard was applied." Blevins v. Bardwell, 784 So.2d 166, 168 (Miss. 2001) (quoting Madden v. Rhodes, 626 So.2d 608, 616 (Miss. 1993)). "The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each." Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001) (citing Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss. 1994)). "[W]e will not arbitrarily substitute our judgment for that of a chancellor who is in the best position to evaluate all factors relating to the best interest of the child." Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993) (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss. 1973)).

ANALYSIS

¶ Although Helen presents us with several assignments of error, we need only address one.

I. WHETHER THE CHANCELLOR APPLIED THE CORRECT LEGAL STANDARD

¶ Helen asserts that the chancellor placed too much emphasis on the natural parent presumption in awarding custody of the boys to Charles. In ordinary circumstances, the rights of a third-party custodian are inferior to that of a natural parent. This Court adopted the natural parent presumption in 1900 and held that:

Children must and ought to be subject to the custody and control of those who are immediately responsible for their being, for the reason that by nature there has been implanted in the human heart those seeds of parental and filial affection that will assure to the infant care and protection in the years of its helplessness ... that the primary object is the interest of the child, the presumption of the law is that its interest is to be in the custody of its parent.

Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 81 (1900) (quoting Weir v. Marley, 12 S.W. 798, 800 (Mo. 1890)). As the times have changed, so has the law.

¶ In addressing the natural parent presumption, this Court noted:

[I]t is presumed that the best interests of the child will be preserved by it remaining with its parents or parent. In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the child, or (2) the conduct of the parent is so immoral (as) to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child.

Grant v. Martin, 757 So.2d 264, 265 (¶ 5) (Miss. 2000) (quoting McKee v. Flynt, 630 So.2d 44, 47 (Miss. 1993)). In Grant, the biological parents relinquished full custody of the children to the children's grandparents. Four years later, the biological mother attempted to regain custody. We announced a new standard concerning custody matters between a natural parent and third-parties:

Therefore we adopt a new standard and hold that a natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption. A natural parent may reclaim custody of the child only upon showing by clear and convincing evidence that the change in custody is in the best interest of the child. This new rule not only reaffirms that the polestar consideration in all child custody cases is the best interest of the child, but also gives the chancellor the authority to make a "best interest" decision in voluntary relinquishment cases without being fettered by the presumption in favor of natural parents which applies in other child custody cases.

Grant v. Martin, 757 So.2d at 266 (¶ 10). In so holding, we likewise stated:

Our law clearly has a strong presumption that a natural parent's right to custody is superior to that of third parties, whether grandparents or others.

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While we do not want to discourage the voluntary relinquishment of custody in dire circumstances where a parent, for whatever reason, is truly unable to provide the care and stability a child needs, neither do we want to encourage an irresponsible parent to relinquish their child's custody to another for convenience sake, and then be able to come back into the child's life years later and simply claim the natural parents' presumption as it stands today.

757 So.2d at 266 (¶ 9) (emphasis added). Justice McRae summed up the matter in his separate opinion by saying:

We would be remiss to allow a parent to perpetually rely on the presumption in their favor after voluntarily relinquishing custody and practically abandoning the children for four years. Such a holding would deny the chancery court the power to provide for the best interests of the minor children.

Id. at 267 (¶ 14) (McRae, J., concurring in part and dissenting in part).

¶ It is likewise obvious that Grant applies to the case sub judice, notwithstanding the fact that Helen is a foster parent as opposed to a person related by blood or marriage to the minor children. Our decision in Grant was published approximately three months before the hearing on the underlying matter. Thus, in the case before us today, the burden was on Charles to show by clear and convincing evidence that a change in custody would be in the best interest of the children. In December, 1998, Charles agreed to the court's granting of durable custody to Helen Barnett. Note the following exchange between Charles and his own attorney on direct examination:

Q: And did you agree to give durable custody to Helen Barnett in December of 1998?

A: Yes, ma'am, I did.

There is no doubt that the chancellor erroneously applied the natural parent presumption in favor of Charles.

¶ The durable legal custody granted to Helen was done so under authority of Miss. Code Ann. § 43-21-609 (Rev. 2000), which provides:

In neglect and abuse cases, the disposition order may include any of the following alternatives, giving precedence in the following sequence:

(a) Release the child without further action;

(b) Place the child in the custody of his parents, a relative or other person subject to any conditions and limitations as the court may prescribe. If the court finds that temporary relative placement, adoption or foster care placement is inappropriate, unavailable or otherwise not in the best interest of the child, durable legal custody may be granted by the court...

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