In Interest of T.L.C., 89-CA-789

• Court: United States State Supreme Court of Mississippi
• Citation: 566 So.2d 691
• Docket Number: No. 89-CA-789,89-CA-789
• Parties: In the Interest of T.L.C. Roy CORTESI v. WASHINGTON COUNTY DEPARTMENT OF HUMAN SERVICES and Teresa Leviner Cortesi.
• Decision Date: 25 July 1990

Page 691

566 So.2d 691

In the Interest of T.L.C.

Roy CORTESI v. WASHINGTON COUNTY DEPARTMENT OF HUMAN SERVICES and Teresa

Leviner Cortesi.

No. 89-CA-789.

Supreme Court of Mississippi.

July 25, 1990.

Rehearing Denied Sept. 19, 1990.

Stephen Nick, Greenville, for appellant.

Joe Gentile, Mike C. Moore, Atty. Gen. J.D. Woodcock, Sp. Asst. Atty. Gen., Jackson, Nick Crawford, Vernita F. King Johnson, Wayne O. Lee, Greenville, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court.

I.

This appeal finds a father challenging a Youth Court adjudication that his two and a half year old girl is an abused child, and suggesting that he did it, followed by an order placing the child in the custody of her mother. The father presents a plethora of procedural points, plus several evidentiary ones. With one limited exception, we affirm.

II.

On June 8, 1986, T.L.C. was born to Roy Cortesi and Teresa Leviner. Roy and Teresa were not married at the time nor have they since married. ¹

On June 23, 1988, Roy and Teresa filed in the Chancery Court of Washington County, Mississippi, their Joint Petition For The Determination of Paternity, Custody And Child Support. The next day that Court adjudged Roy the father of T.L.C. and placed the child within the joint custody of her parents, providing for alternating six months periods of physical custody. ²

On December 13, 1988, Roy brought T.L.C. to the emergency room at the Delta Medical Center in Greenville, Mississippi, and advised that she had suffered injuries in a fall. Patricia Dubard, the emergency room nurse, examined the little girl and immediately concluded that her bruises were not consistent with a fall and that she had probably been abused physically. Dubard reported this to the Washington County Department of Human Services (DHS), ³ as she by law is required to do. Miss.Code Ann. Sec. 43-21-353(1) (Supp.1989).

The Youth Court of Washington County, Mississippi, promptly dispatched a social worker to the home of Roy Cortesi to investigate, and this led to a Shelter Hearing held in Youth Court on December 16, 1988, in which the Court found T.L.C. to be "endangered", see Miss.Code Ann. Sec. 43-21-301(3)(b)(i) (Supp.1989), and placed her in the custody of her mother, Teresa, pending an adjudicatory hearing.

On January 23, 1989, the Youth Court prosecutor delivered to the Youth Court a petition alleging that T.L.C. "is battered as contemplated by said Youth Court Act." Inexplicably, the Court's clerk did not mark the petition "filed" until March 21, 1989. The Court scheduled a hearing for April 5, 1989, but then continued the matter at Roy's request until April 20, 1989.

Prior to the hearing, Roy moved the Court for an order of dismissal on grounds the Youth Court prosecutor had not filed her petition within five days of the Shelter Hearing, citing Miss.Code Ann. Sec. 43-21-451 (1972). In addition, Roy moved for an order transferring the matter to the Chancery Court of Washington County, Mississippi. ⁴

On April 20, 1989, the Youth Court held an adjudicatory hearing and in the end adjudged T.L.C. to be an abused child. After a 30 minute recess, the Court reconvened for a dispositional hearing and at the conclusion thereof ordered custody of T.L.C. placed with Teresa subject to possible modification upon completion of a DHS home study of the Roy Cortesi household.

On May 2, 1989, Roy moved the Court for an order dismissing the petition with prejudice or in the alternative, for a new trial. On May 15, 1989, Roy filed another motion to dismiss, this time arguing that the Youth Court lacked jurisdiction. On June 1, 1989, the Youth Court denied both motions.

Roy now appeals to this Court. See Miss.Code Ann. Sec. 43-21-651 (1972).

III.

Two preliminary matters need be considered.

A.

Nick Crawford, guardian ad litem for T.L.C. and Vernita King Johnson, Youth Court Prosecutor, have moved this Court for entry of an order dismissing this appeal on grounds that Roy Cortesi has no standing to appeal the Youth Court's order. Presumably the point is somehow grounded in the fact that Roy was not and has never been married to T.L.C.'s mother.

The point is specious. For one thing, on December 13, 1988, Roy had physical, if not legal, custody of T.L.C. ⁵ This Court has allowed one having custody of a child to appeal a Youth Court determination that involves custody without a second thought. See, e.g., Collins v. Lowndes County Public Welfare Department, 555 So.2d 71 (Miss.1989); Prante v. Beggiani, 519 So.2d 1208 (Miss.1988); In re K.M.G., 500 So.2d 994 (Miss.1987); In re M.R.L, M.L.L. and V.L., 488 So.2d 788 (Miss.1986); In re I.G., 467 So.2d 920 (Miss.1985).

In addition, several sections of the Youth Court Act recognize the parent or guardian of the child as a party to the proceedings by requiring that they be provided with notice. See, e.g., Miss.Code Ann. Sec. 43-21-309(2) (Supp.1989) (parent, guardian or custodian to be given reasonable oral or written notice of detention or shelter hearing); Miss.Code Ann. Sec. 43-21-501(1)(b) & (c) (1972) ("person or persons who have custody or control of the child" and "parent or guardian of the child if such parent or guardian does not have custody of the child" to be served with summons when a petition is filed). While these statutes do not grant a right of appeal, they do recognize the substantial interest a parent has in the outcome of the proceedings, whatever their nature: the continued custody of their child.

Without further ado, we hold that a person colorably claiming to be a natural parent, even if a non-custodial one, has standing to appeal an order of a Youth Court adjudging custody or other matters regarding his or her child.

B.

The Washington County Department of Human Services filed a motion with this Court seeking to be dismissed as a party to this appeal. The basis for this motion is twofold: (1) the Washington County DHS was not a party to the proceedings below; and (2) the Washington County DHS has no legal interest in the matter.

The Youth Court Prosecutor and T.L.C.'s guardian ad litem have appeared, but this begs the question whether DHS has an independent responsibility in the premises, particularly inasmuch as the prosecutor and guardian ad litem have but joined in DHS's brief. We have encountered a kindred problem on prior occasions. In In Interest of R.T., 520 So.2d 136 (Miss.1988), we said

We consider Youth Court cases of the utmost seriousness and, in order that we may properly discharge our judicial function, we must have the aid and assistance of diligent and competent counsel for the prosecution and the defense.

R.T., 520 So.2d at 138. In Collins v. Lowndes County Public Welfare Department, 555 So.2d 71, 73 (Miss.1989) we appropriately chastised DHS's predecessor agency for failing to appear and file a brief. ⁶ This admonition was particularly appropriate in light of the "duty of every public official or department to render all assistance and cooperation within his or its jurisdictional power which may further the objects of [the Youth Court Act]." Miss.Code Ann. Sec. 43-21-127 (1972).

The motion of the Washington County Department of Human Services to be dismissed as a party to this appeal is denied.

IV.

Roy argues that the Youth Court system unconstitutionally usurps jurisdiction he believes committed exclusively to Chancery Court. He complains specifically of the establishment clause in the Youth Court Act, Miss.Code Ann. Sec. 43-21-107 (Supp.1989), acting in conjunction with the jurisdictional clause, Miss.Code Ann. Sec. 43-21-151 (Supp.1989). In support, Roy cites Miss. Const. Art. 6, Sec. 159(d) which provides that the Chancery Court shall have full jurisdiction over "minor's business."

Miss. Const. Art. 6, Sec. 172 (1890) provides: The legislature shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient.

Section 172 empowered the legislature to establish the youth courts. The question, however, is whether the legislature had authority to vest in the youth courts "exclusive original jurisdiction in all proceedings concerning ... an abused child...." Miss.Code Ann. Sec. 43-21-151 (Supp.1989). Roy says it did not because this jurisdiction is constitutionally given the chancery courts and the youth courts are in no way made "inferior" to the chancery courts. Cf. Ex Parte Tucker, 164 Miss. 20, 29, 143 So. 700, 701 (1932).

Without doubt, our constitutional scheme contemplates the power of judicial review of legislative enactments, Alexander v. State ex rel. Allain, 441 So.2d 1329, 1333 (Miss.1983); however, that power may be exercised affirmatively only where the legislation under review be found

in palpable conflict with some plain provision of the ... constitution.

Hart v. State, 87 Miss. 171, 176, 39 So. 523, 524 (1905). Statutes such as the Youth Court Act come before us clothed with a heavy presumption of constitutional validity. See, e.g., Burrell v. Mississippi State Tax Commission, 536 So.2d 848, 858-59 (Miss.1988); In Re Estate of Smiley, 530 So.2d 18, 21-22 (Miss.1988); Jones By Jones v. Harris, 460 So.2d 120, 122 (Miss.1984); Clark v. State ex rel. Mississippi State Medical Association, 381 So.2d 1046, 1048 (Miss.1980); Genesco, Inc. v. J.C. Penney Co., Inc., 313 So.2d 20, 24 (Miss.1975); McCaffrey's Food Market, Inc. v. Mississippi Milk Commission, 227 So.2d 459, 462 (Miss.1969). The party challenging the constitutionality of a statute is burdened with carrying his case beyond all reasonable doubt before this Court has authority to hold the statute, in whole or in part, of no force or effect. See, e.g., Mississippi Power Co. v. Goudy, 459 So.2d 257, 263, 274 (Miss.1984); Anderson v. Fred Wagner & Roy Anderson, Jr., Inc., 402 So.2d 320, 321 (Miss.1981); Clark v. State ex rel. Mississippi State Medical Association, 381 So.2d 1046, 1048 (Miss.1980); McCardle v....