In re Guardianship of Brown, No. 2003-CA-00719-COA.

CourtCourt of Appeals of Mississippi
Citation902 So.2d 604
Docket NumberNo. 2003-CA-00719-COA.
PartiesIn re GUARDIANSHIP OF Rickie Jamal BROWN, Jr., and Ebony Cierra Brown, Minors. Rickie Brown, Appellant, v. Elizabeth Wiley, Appellee.
Decision Date23 November 2004

902 So.2d 604

In re GUARDIANSHIP OF Rickie Jamal BROWN, Jr., and Ebony Cierra Brown, Minors.
Rickie Brown, Appellant,
v.
Elizabeth Wiley, Appellee

No. 2003-CA-00719-COA.

Court of Appeals of Mississippi.

November 23, 2004.

Rehearing Denied February 1, 2005.

Certiorari Denied May 26, 2005.


902 So.2d 605
Arnold D. Dyre, Jackson, Donny Meeks, attorneys for appellant

Carlos Eugene Moore, A.E. (Rusty) Harlow, Jackson, attorneys for appellee.

EN BANC.

CHANDLER, J., for the Court.

¶ 1. Following the death of her daughter, Elizabeth Wiley filed a petition to appoint a guardian and sought custody of her daughter's children. The Chancery Court of Grenada County awarded custody of the children to Ms. Wiley, the maternal grandmother. The children's father, Rickie Brown, was granted visitation and was ordered to pay child support. Mr. Brown appeals, raising the following issue:

WAS THE TRIAL COURT MANIFESTLY ERRONEOUS IN GRANTING CUSTODY TO THE CHILDREN'S MATERNAL GRANDMOTHER?

902 So.2d 606
¶ 2. Finding that the chancellor applied the incorrect legal standard, we reverse and remand

FACTS

¶ 3. In July of 1998, Aretha Brown ("Ms. Brown"), a sickle cell anemia patient, moved to Grenada, Mississippi, with her two children. She moved to Mississippi from Philadelphia, Pennsylvania, to be near her mother due to her financial difficulties and to be in a warmer climate for her illness. Her estranged husband and father of her children, Rickie Brown ("Mr. Brown"), stayed in Philadelphia. Ms. Brown died on October 28, 2002. On October 30, 2002, Ms. Brown's mother, Elizabeth Wiley, filed a petition to appoint herself as guardian of her daughter's children and to grant herself custody. On November 1, 2002, Mr. Brown returned to Mississippi, requested custody of his children, and refused to leave the state without taking his children with him. On November 4, 2002, the chancery court granted a temporary restraining order prohibiting Mr. Brown from taking away the children or removing them from the Grenada School District.

¶ 4. At the request of both parties, the case was decided quickly, and a final hearing was held on December 23, 2002. On January 13, 2003, the court entered judgment and vested permanent and physical custody of the children with Ms. Wiley. The judgment awarded Brown "reasonable and liberal visitation" with his children and ordered him to pay $615 per month. Brown was also granted six weeks of uninterrupted summer visitation. Mr. Brown filed a motion to reconsider on January 23, 2003. The chancellor did not change its earlier judgment which gave Ms. Wiley legal and physical custody of Mr. Brown's children.

ANALYSIS

WAS THE TRIAL COURT MANIFESTLY ERRONEOUS IN GRANTING CUSTODY TO THE CHILDREN'S MATERNAL GRANDMOTHER?

¶ 5. At the hearing, the parties and trial court agreed that the leading case regarding the custody rights of a natural parent is stated in Sellers v. Sellers, 638 So.2d 481 (Miss.1994). The Mississippi Supreme Court stated:

The well-settled rule in a child custody case between a natural parent and a third party is that it is presumed that the best interest of the child will be preserved by being in the custody of the natural parent. In order to overcome this presumption there must be a clear showing that (1) the parent has abandoned the child, (2) the conduct of the parent is so immoral as to be detrimental to the child, or (3) the parent is mentally or otherwise unfit to have custody of the child.

Id. at 486 (citing Hale v. Hood, 313 So.2d 18, 19-20 (Miss.1975); Rodgers v. Rodgers, 274 So.2d 671 (Miss.1973)).

¶ 6. Applying the three-factor Sellers test, the chancellor found that Mr. Brown had not abandoned his children, that he demonstrated sufficient moral fitness, and that he was mentally fit to take care of his children. Ultimately, he decided that Mr. Brown was not entitled to custody on the grounds that he was otherwise unfit. In deciding that Mr. Brown was otherwise unfit, the chancellor considered three factors. First, the chancellor noted that Mr. Brown failed to pay his child support in a consistent manner in the time that his children were separated from him, as evidenced by the fact that he was more than $3,000 behind in his payments as of the date of the hearing. Second, the chancellor

902 So.2d 607
found that Mr. Brown was unreasonably absent from his children, as shown by the fact that he had seen them only once in the prior four year period and otherwise communicated with them only by telephone. Third, the chancellor found that Mr. Brown had failed to provide emotional support for his children while Ms. Brown suffered through her illness

¶ 7. The issue before us is unique. There has never been a case in our jurisprudence in which the lower court decided to deny custody to a natural father solely on the grounds that he is otherwise unfit. Our review of the chancery court's decision analyzes whether the chancellor appropriately applied the law to the facts. A chancery court's interpretation and application of the law is reviewed under a de novo standard. Madison County v. Hopkins, 857 So.2d 43, 47(¶ 11) (Miss.2003); Tucker v. Prisock, 791 So.2d 190, 192(¶ 10) (Miss.2001); In re Carney, 758 So.2d 1017, 1019(¶ 8) (Miss.2000).

¶ 8. We begin our analysis by examining Mississippi Code Annotated § 93-15-103(3) (Supp.2003), which lists grounds for termination of parental rights. Although the chancellor did not terminate Mr. Brown's parental rights, the statute is helpful for us to use to decide what grounds of "otherwise unfitness" a court can consider in denying custody. The factors the statute lists includes abandonment; lack of contact with a child under the age of three for a period of six months or a child three years or older for a period of one year; episodes of abusive incidents towards the child; substance addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation making the parent unable to assume minimally acceptable care of the child; 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 caused at least in part by the parent; and the parent's conviction of rape or other sexual misconduct against any child. Abandonment, moral unfitness, and mental unfitness are all included in this statute; therefore, we find that a reading of this statute is helpful in deciding what types of factors a court should consider in deciding whether a natural parent is otherwise unfit for taking care of his children. In fact, courts have used exactly the same language explaining the burden of proof in termination of parental rights cases as they have used in explaining the rights of a natural parent to have custody over a third party: "In termination of parental rights cases, the petitioner must prove that the natural parent either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the minor child." N.E. v. L.H., 761 So.2d 956, 961(¶ 11) (Miss.Ct.App.2000) (citing Petit v. Holifield, 443 So.2d 874, 877 (Miss.1984)).

¶ 9. A reading of Mississippi Code Annotated § 93-15-103(3) shows that the legislature intended to create a strong presumption in favor of the natural parent retaining his parental rights, including the right to custody. We find...

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5 practice notes
  • Pruitt v. Payne, No. 2008-CA-00172-COA.
    • United States
    • Court of Appeals of Mississippi
    • July 28, 2009
    ...of unfitness is necessary to 14 So.3d 811 award custody to a third party over a natural parent." In re Guardianship of Brown v. Wiley, 902 So.2d 604, 609 (¶ 14) (Miss.Ct.App.2004). This Court has long recognized There is a presumption in Mississippi that the best interests of a child will b......
  • Lee v. Bramlett, NO. 2017-CA-01202-COA
    • United States
    • Mississippi Court of Appeals
    • February 26, 2019
    ...he has no meaningful relationship with his children, or . . . the parent's conduct is clearly detrimental to his children." In re Brown, 902 So. 2d 604, 607 (¶9) (Miss. Ct. App. 2004).¶34. None of the above scenarios are present in this case. Lee has never relinquished her rights to Gregory......
  • In the Matter of Estate of Langston v. Williams, No. 2008-CA-01090-COA (Miss. App. 3/30/2010), No. 2008-CA-01090-COA.
    • United States
    • Court of Appeals of Mississippi
    • March 30, 2010
    ...So. 2d 1378, 1389 (Miss. 1995); Schonewitz v. Pack, 913 So. 2d 416, 418 (¶6) (Miss. Ct. App. 2005); In re Guardianship of Brown v. Wiley, 902 So. 2d 604, 606 (¶2) (Miss. Ct. App. 2004); Johnson v. Johnson, 877 So. 2d 485, 495-96 (¶45) (Miss. Ct. App. 2003). Therefore, if I agreed with the m......
  • In the Matter of The EState Mcdaniel Langston v. Williams, No. 2008–CA–01090–COA.
    • United States
    • Court of Appeals of Mississippi
    • August 3, 2010
    ...658 So.2d 1378, 1389 (Miss.1995); Schonewitz v. Pack, 913 So.2d 416, 418 (¶ 6) (Miss.Ct.App.2005); In re Guardianship of Brown v. Wiley, 902 So.2d 604, 606 (¶ 2) (Miss.Ct.App.2004); Johnson v. Johnson, 877 So.2d 485, 495–96 (¶ 45) (Miss.Ct.App.2003). Therefore, if I agreed with the majority......
  • Request a trial to view additional results
5 cases
  • Pruitt v. Payne, No. 2008-CA-00172-COA.
    • United States
    • Court of Appeals of Mississippi
    • July 28, 2009
    ...of unfitness is necessary to 14 So.3d 811 award custody to a third party over a natural parent." In re Guardianship of Brown v. Wiley, 902 So.2d 604, 609 (¶ 14) (Miss.Ct.App.2004). This Court has long recognized There is a presumption in Mississippi that the best interests of a child will b......
  • Lee v. Bramlett, NO. 2017-CA-01202-COA
    • United States
    • Mississippi Court of Appeals
    • February 26, 2019
    ...he has no meaningful relationship with his children, or . . . the parent's conduct is clearly detrimental to his children." In re Brown, 902 So. 2d 604, 607 (¶9) (Miss. Ct. App. 2004).¶34. None of the above scenarios are present in this case. Lee has never relinquished her rights to Gregory......
  • In the Matter of Estate of Langston v. Williams, No. 2008-CA-01090-COA (Miss. App. 3/30/2010), No. 2008-CA-01090-COA.
    • United States
    • Court of Appeals of Mississippi
    • March 30, 2010
    ...So. 2d 1378, 1389 (Miss. 1995); Schonewitz v. Pack, 913 So. 2d 416, 418 (¶6) (Miss. Ct. App. 2005); In re Guardianship of Brown v. Wiley, 902 So. 2d 604, 606 (¶2) (Miss. Ct. App. 2004); Johnson v. Johnson, 877 So. 2d 485, 495-96 (¶45) (Miss. Ct. App. 2003). Therefore, if I agreed with the m......
  • In the Matter of The EState Mcdaniel Langston v. Williams, No. 2008–CA–01090–COA.
    • United States
    • Court of Appeals of Mississippi
    • August 3, 2010
    ...658 So.2d 1378, 1389 (Miss.1995); Schonewitz v. Pack, 913 So.2d 416, 418 (¶ 6) (Miss.Ct.App.2005); In re Guardianship of Brown v. Wiley, 902 So.2d 604, 606 (¶ 2) (Miss.Ct.App.2004); Johnson v. Johnson, 877 So.2d 485, 495–96 (¶ 45) (Miss.Ct.App.2003). Therefore, if I agreed with the majority......
  • Request a trial to view additional results

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