In re Marriage of Leverock & Hamby

• Decision Date: 03 December 2009
• Docket Number: No. 2008-CA-00093-SCT.,2008-CA-00093-SCT.
• Citation: 23 So.3d 424
• Parties: In the Matter of the DISSOLUTION OF the MARRIAGE OF James LEVEROCK AND Deanna HAMBY: Brent Keith Pendleton and Kim Renee Pendleton v. James Anthony Leverock.
• Court: Mississippi Supreme Court

23 So.3d 424

In the Matter of the DISSOLUTION OF the MARRIAGE OF James LEVEROCK AND Deanna HAMBY Brent Keith Pendleton and Kim Renee Pendleton v. James Anthony Leverock.

No. 2008-CA-00093-SCT.

Supreme Court of Mississippi.

December 3, 2009.

Renee M. Porter, attorney for appellants.

Brandon L. Brooks, Shirlee Fager-Baldwin, attorneys for appellee.

EN BANC.

LAMAR, Justice, for the Court.

¶ 1. Zachary Tyler Leverock (Zach) was born to Deanna Hamby and James Anthony Leverock (Tony). Upon the couple's separation, Deanna and Zach moved in with her foster parents, the Pendletons. For the following two and a half years, Zach lived with the Pendletons with no contact from Tony. Deanna died in a car accident, and at her funeral, Tony told the Pendletons that he eventually wanted to take Zach back to Florida with him. The Pendletons filed a complaint for emergency temporary custody, termination of parental rights, and for custody. A trial was held, and Tony received custody of Zach.

¶ 2. The Pendletons assert that the chancery court erred by refusing to: (1) terminate Tony's parental rights; (2) award the Pendletons custody after finding the best interests of the child would be to remain in their care; (3) grant visitation; and (4) deem requests for admission admitted despite an untimely response.

FACTS

¶ 3. Tony and Deanna met while they were enrolled in the Job Corps program. The two married on May 24, 2002. Tony enlisted in the Army, and they moved to Fort Bragg, North Carolina. Deanna gave birth to the couple's son, Zach, on May 18, 2003, while Tony was serving in Iraq. He returned from overseas when Zach was approximately four months old. Three months later, on January 6, 2004, the couple separated, and Deanna and Zach returned to Mississippi.

¶ 4. Deanna and Zach moved into the house with her foster parents, Brent and Kim Pendleton, who began serving as Deanna's foster parents when she was sixteen years old. Deanna lived with the Pendletons sporadically upon her return from Fort Bragg, but Zach lived almost exclusively with the Pendletons from that time until custody was awarded to Tony in November 2007.

¶ 5. Soon after Deanna returned to Mississippi, Tony was "other than honorably discharged" from the Army for failing repeated drug tests. He went back to his hometown of Jacksonville, Florida, and moved in with his girlfriend Jennifer Cooper, Jennifer's mother, her mother's boyfriend, and her sister. Tony and Jennifer had a child on May 24, 2005. He remained legally married to Deanna at that time.

¶ 6. Tony admitted that he had no contact with Zach from the time Zach left Fort Bragg in January 2004, until May 2006, except for a few moments in June 2004, when Deanna traveled to Florida to give Tony divorce papers. According to the divorce papers, Deanna was to have full legal and physical custody of Zach with Tony having reasonable visitation. Tony also agreed to pay child support in the amount of $350 per month. The divorce papers were not filed until January 2006, and the divorce was never granted. Tony did not exercise any visitation nor did he pay any child support as specified in the divorce petition and agreement.

¶ 7. Tragically, on May 13, 2006, Deanna was killed in a car accident in Laurel, Mississippi. Tony came to her funeral and asked the Pendletons if he could see his son. Zach did not recognize his father. After Deanna's funeral, Tony indicated to the Pendletons that he was interested in forging a relationship with the child. Tony testified that he simply wanted to start spending time with Zach, and when Zach knew who his real father was, he wanted to take him back to Florida. On May 18, 2006, the Pendletons filed a complaint for emergency temporary custody and termination of Tony's parental rights. Shortly after returning from Deanna's funeral, Tony moved with his girlfriend and their child into the home of his father and stepmother in Florida.

¶ 8. On May 22, 2006, the chancery court awarded temporary custody to the Pendletons, finding that they had been the primary caretakers of Zach for more then two years, and it was in Zach's best interests for the Pendletons to be vested with temporary custody. On July 25, 2006, the court appointed a guardian ad litem (GAL), ordered Tony to begin paying child support, and indicated that once the GAL had evaluated Zach, a visitation schedule would be set. The chancellor then devised a visitation schedule that gradually increased visitation from a few hours every other weekend in Purvis, Mississippi, to two-week-long visitations in Florida.

¶ 9. At trial, the Pendletons presented nine witnesses in support of their contention that Tony had abandoned his son and that a substantial erosion of the relationship had occurred. Tony's mother, sister, and stepfather testified in favor of the Pendletons. Tony, his father, and Dr. Pat Galloway, a family counseling expert, testified in favor of Tony. The GAL also testified.

¶ 10. Tony admitted that he had never paid any child support, had never sent any type of birthday or Christmas present, nor had he attempted to exercise any type of visitation since his wife had left Fort Bragg, until the time he came to her funeral, approximately two and a half years later. He maintained at trial that he did not know where Deanna was living, that he had been unable to get in touch with her, and that he had never sent money or gifts because he did not know where to send them.

¶ 11. Tony's mother and sister both testified that they had been in continuous contact with the Pendletons, Zach, and Deanna from the time Deanna and Tony had separated. This contact consisted of visits to Mississippi as well as paying for Deanna and Zach to visit them in Florida. Tony's mother indicated she regularly had encouraged Tony to be more involved with his child, but he had refused. She also testified that she had told Tony where Zach was living and how to contact him and the Pendletons. Tony's paternal grandparents were also involved with Zach and went to visit Zach at the Pendletons' residence several times a year. Tony's mother, sister, and grandparents all described a close, parent-child relationship between the Pendletons and Zach. Tony's father, with whom he lived after moving out of his girlfriend's house, painted a different picture of the Pendletons. He stated that the Pendletons were uncooperative the one time he attempted to call them and check on Zach.

¶ 12. Evidence was presented that Zach was not easily coping with the increased contact with his father and that the Pendletons had been taking him to therapy as the visitation schedule allowed. Zach's counselor testified for the Pendletons, claiming that Zach was afraid of Tony's stepmother because she allegedly had slapped him. Tony and his father denied that Zach was having trouble adjusting to the prolonged visitation in Florida. The GAL and the family counseling expert both testified that Tony had shown improvement in his parenting skills and should be allowed to regain custody of Zach.

¶ 13. On November 9, 2007, the chancellor found that the custody, support, and property settlement agreement did not reflect any intention by Tony to irrevocably abandon Zach before Deanna's death. He also noted Tony's actions after Deanna's death in restoring his relationship with Zach. The chancellor adopted the recommendations of the GAL and Dr. Galloway that Zach be returned to his father. The Pendletons appeal this decision by the chancellor.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN REFUSING TO TERMINATE THE NATURAL FATHER'S PARENTAL RIGHTS.

¶ 14. Appellate review in a case to terminate parental rights is the manifest error/substantial credible evidence test. S.N.C. v. J.R.D., Jr., 755 So.2d 1077, 1080 (Miss.2000). As long as there is credible evidence to support the chancellor's findings of fact, we must affirm the decision. K.D.F. v. J.L.H., 933 So.2d 971, 976-77 (Miss.2006). "We will examine the case de novo, however, when it is clear that the chancery court's decision resulted from a misunderstanding of the controlling law or was based on a substantially erroneous view of the law." R.L. v. G.F., 973 So.2d 322, 324 (Miss.Ct.App.2008).

¶ 15. The Pendletons requested that the chancellor find abandonment and/or unfitness, terminate Tony's parental rights, and award them custody. In refusing to terminate the father's parental rights, the chancellor referenced Mississippi Code Section 93-15-103¹, which addresses adoption, not custody, and provides, in relevant part, that:

(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.

. . .

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:

. . .

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year[.]

. . .

(f) When there is an 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 which was caused at least in part by the parent's serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or...