Doe v. Adams Cnty. Dep't of Child Prot. Servs.

• Docket Number: 2022-CA-00240-SCT
• Decision Date: 01 June 2023
• Citation: 361 So.3d 1282
• Parties: Jane DOE v. ADAMS COUNTY DEPARTMENT OF CHILD PROTECTION SERVICES, BY Marcus D. DAVENPORT, and Karen Doe, a Minor, By and Through His Next Friend, Marcus D. Davenport and John Doe
• Court: Mississippi Supreme Court

361 So.3d 1282

Jane DOE

v.ADAMS COUNTY DEPARTMENT OF CHILD PROTECTION SERVICES, BY Marcus D. DAVENPORT, and Karen Doe, a Minor, By and Through His Next Friend, Marcus D. Davenport and John Doe

NO. 2022-CA-00240-SCT

Supreme Court of Mississippi.

June 1, 2023

ATTORNEY FOR APPELLANT: SCOTT F. SLOVER, Natchez

ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL, BY: NATHAN H. McINTOSH

BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.

GRIFFIS, JUSTICE, FOR THE COURT:

¶1.Jane Doe¹ appeals the youth court's denial of her motion to transfer for lack of jurisdiction and motion for recusal.We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2.In 2019, Jane was arrested in Natchez, Adams County, Mississippi, and charged with possession and sale of a controlled substance.At the time of her arrest, Jane was pregnant and homeless.As a condition of her bond with Adams County, Jane was placed at Born Free, a residential facility in Hinds County that provides substance abuse treatment to pregnant mothers.Jane entered Born Free on May 30, 2019.On July 16, 2019, Jane gave birth to Karen at the University of Mississippi Medical Center in Hinds County.Jane later returned to Born Free with Karen.

¶3.On August 19, 2019, Jane was negatively discharged from Born Free for various program violations.The Adams County Sheriff's Department was contacted, and Jane was transported back to Adams County.The Adams County Department of Child Protection Services(CPS) was also contacted and took Karen into custody.Karen was placed in an approved foster home where she remained under the supervision and control of CPS.

¶4.Upon her return to Adams County, Jane rented an apartment in Adams County.On December 10, 2019, the Adams County County Court, sitting as a youth court,² adjudicated Karen a neglected child.As part of the permanency plan of reunification, CPS developed a service agreement with Jane.Under the service agreement, Jane was to enter the Adams County family drug court program, find suitable employment, and maintain visitation with Karen.

¶5.Jane failed to comply with the service agreement and further failed to maintain contact with CPS.As a result, on December 10, 2020, the youth court found that it was in Karen's best interests for the permanency plan to change from reunification to adoption.

¶6.On October 4, 2021, CPS filed a petition to terminate parental rights.An amended petition was later filed on October 22, 2021.³A guardian ad litem was appointed, and a trial date was set for December 3, 2021.

¶7.On November 30, 2021, Jane filed a "motion to transfer for insufficient jurisdiction^[4] or motion for recusal."In her motion, Jane asserted that "[she] was in a court-ordered rehab [facility] in Hinds County, Mississippi when [Karen] was born" and that "[a]t all times, [she] had physical presence with an intent to remain in Hinds County[.]"As a result, Jane argued that the case should be transferred from the Adams County Youth Court to the Hinds County Youth Court.Jane further argued that the youth court judge should recuse because he"has been the presiding [judge] in this action and has already concluded that termination [of parental rights] is proper."

¶8.Following a pretrial hearing on December 3, 2021, Jane's motions were denied.Jane was then proffered as a witness.She was examined by her attorney and cross-examined by both the youth courtprosecutor and the guardian ad litem.After the proffered testimony, the youth court advised that its decision remained the same—Jane's motions to transfer and for recusal were denied.

¶9.After hearing all testimony at trial, the youth court found that termination of Jane's parental rights was in Karen's best interests.A final judgment was entered terminating Jane and John's parental rights.

¶10.Jane timely filed a notice of appeal.On appeal, Jane argues (1) venue was proper in Hinds County, and (2) recusal was necessary.

DISCUSSION

I.Venue

¶11."An abuse of discretion standard of review is applied by this Court when reviewing the trial court's denial of a motion to change venue."Herman Grant Co. v. Washington , 214 So. 3d 266, 270(Miss.2017)(internal quotation marks omitted)(quotingMerchant v. Forest Fam. Prac. Clinic, P.A. , 67 So. 3d 747, 754(Miss.2011) )."A trial judge's ruling on such motion ‘will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case.’ "Id.(quotingPark on Lakeland Drive, Inc. v. Spence , 941 So. 2d 203, 206(Miss.2006) )."Questions of law, such as statutory interpretation, are subject to a de novo standard of review."Jones v. Mallett , 125 So. 3d 650, 652(Miss.2013)(internal quotation marks omitted)(quotingTellus Operating Grp., LLC v. Tex. Petroleum Inv. Co. , 105 So. 3d 274, 278(Miss.2012) ).

¶12."The youth court shall have exclusive original jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child" except in limited circumstances that do not apply in this case.Miss. Code. Ann. § 43-21-151(1)(Rev. 2021).Venue for youth court proceedings is set forth in Mississippi Code Section 43-21-155(Rev. 2021), which provides:

(1) If a child is alleged to be a delinquent child or a child in need of supervision, the proceedings shall be commenced in any county where any of the alleged acts are said to have occurred.After adjudication, the youth court may, in the best interest of the child, transfer the case at any stage of the proceeding for disposition to the county where the child resides or to a county where a youth court has previously acquired jurisdiction.

(2) If a child is alleged to be an abused or neglected child, the proceedings shall be commenced in the county where the child's custodian resides or in the county where the child is present when the report is made to the intake unit.After adjudication the youth court may transfer the case at any stage of the proceeding for disposition to the county where the child resides or to a county where a youth court has previously acquired jurisdiction if that is in the best interest of the child.

Miss. Code. Ann. § 43-21-155(Rev. 2021).The Mississippi Legislature has established different criteria for venue in cases involving a delinquent child as opposed to an abused or neglected child.Id.Because this case involves neglect, venue is proper "in the county where the child's custodian resides or in the county where the child [wa]s present when the report [wa]s made to the intake unit."Miss. Code Ann. § 43-21-155(2)(Rev. 2021).

A.County Where Karen's Custodian Resides

¶13."Custodian" means "any person having the present care or custody of a child whether such person be a parent or otherwise."Miss. Code. Ann. § 43-21-105(g)(Rev. 2021)(internal quotation marks omitted).Here, the record reflects, and the parties agree, that Karen's custodian is her natural mother, Jane.Thus, venue is proper where Jane resides.Miss. Code. Ann. § 43-21-155(2).

¶14.This Court has not interpreted the term "resides" as used in Section 43-21-155(2).But "[a]s early as 1938, this Court has held that the word ‘residence’ as used in divorce statutes is synonymous with ‘domicile,’ and that temporary absence by reasons of position did not change the residence of the party."Dunn v. Dunn , 577 So. 2d 378, 380(Miss.1991)(quotingBilbo v. Bilbo , 180 Miss. 536, 549, 177 So. 772, 775(1938) )."The elements indicating one's domicile include: ‘(1) an actual residence voluntarily established in said county, (2) with the bona fide intention of remaining there, if not permanently, at least indefinitely.’ "Williams v. Liberty Mut. Fire Ins. Co. , 187 So. 3d 166, 170(Miss. Ct. App.2015)(quotingSmith v. Smith , 194 Miss. 431, 434, 12 So. 2d 428, 429(1943) ).

1.Actual Residence Voluntarily Established

¶15.Jane asserts she"did not reside in Adams County" and was "in a court-ordered rehab [facility] in Hinds County, Mississippi when [Karen] was born."As a result, she claims this matter should have been transferred to the Hinds County Youth Court.This Court disagrees.

¶16.At the time of her arrest, Jane was in Adams County, homeless.⁵As a condition of her bond with Adams County, Jane was placed at Born Free in Hinds County.But Jane's placement at Born Free does not amount to the voluntary establishment of an actual residence in Hinds County.As part of Jane's criminal charges, the Adams County Sheriff's Department and the Adams County Youth Court agreed to allow Jane to attend the drug treatment program at Born Free due to the fact that she was seven months pregnant.As the Adams County youth courtprosecutor noted, Jane's option was either Born Free in Hinds County or Adams County jail.Thus, Jane did not voluntarily establish a residence in Hinds County but, instead, chose a treatment facility over jail.

¶17.While Jane was at Born Free, Karen was born.On Karen's birth certificate, Jane listed Adams County as Jane's county of residence.When Jane was negatively discharged from Born Free, Adams County officials were notified, and Jane was picked up and brought back to Adams County.Jane has resided in Adams County since her discharge from Born Free in August 2019.After her criminal charges were resolved, Jane remained in Adams County.Jane entered the family drug court program in Adams County, and she rented an apartment in Adams County.Thus, at the time the youth court commenced the neglect proceedings, Jane was no longer in Hinds County and had voluntarily established an actual residence in Adams County.

2.Intent to Remain

¶18."The intent necessary is the intent that an established residence shall be reasonably permanent."Williams , 187 So. 3d at 170(internal quotation mark omitted)(citingSmith , 12 So. 2d at 429 )."The intent must be to make a home at the...