In re TAP, 98-CA-00279-SCT.

• Decision Date: 17 June 1999
• Docket Number: No. 98-CA-00279-SCT.,98-CA-00279-SCT.
• Citation: 742 So.2d 1095
• Parties: In the Interest of T.A.P., J.C.P. and B.A.P., Minors. J.P. v. Mississippi Department of Human Services.
• Court: Mississippi Supreme Court

742 So.2d 1095

In the Interest of T.A.P., J.C.P. and B.A.P., Minors.

J.P. v. Mississippi Department of Human Services.

No. 98-CA-00279-SCT.

Supreme Court of Mississippi.

June 17, 1999.

Margaret Alfonso, Attorney for Appellant.

Office of the Attorney General by J.D. Woodcock, Attorney for Appellee.

EN BANC.

SMITH, Justice, for the Court:

¶ 1. In this child custody case, we consider this case which began in 1994. Using 1994 statutory law, we are asked to consider a case that involves the original jurisdiction of two courts, involves the constitutional rights of a mother whose parental rights have been effectively terminated,¹ and involves the rights of minor children—the paramount consideration in such a case. As explained below, we reverse the judgment of the Harrison County Family Court, which purportedly terminated the mother's parental rights, and we remand this case for implementation of the reunification plan developed by the court-appointed expert.

PROCEDURAL BACKGROUND

¶ 2. On March 25, 1994, the Family Court Intake Unit filed a Neglect Petition in the Harrison County Family Court alleging that T.A.P. (aged 6 years at the time of filing), J.C.P. (aged 5 years at the time of filing), and B.A.P. (aged 3 years at the time of filing)—the children whose best interests are at issue in the instant case-were neglected by their parents— J.P., their mother, and C. P, their father. On March 28, 1994, Family Court Judge Michael H. Ward conducted a Shelter Hearing upon petition of the Family Court Intake Unit. Judge Ward ordered the children temporarily placed with the Harrison County Department of Human Services, Division of Family and Children's Services, Office of Social Services [DHS] for appropriate placement. The family court also authorized the DHS to provide necessary medical and educational needs of the minor children as well as "make reasonable efforts toward reunification of the children with their family."

¶ 3. On June 9, 1994, J.P. pled no contest to allegations of abuse and/or neglect of her children. On December 19, 1994, a hearing was held. The family court found that DHS had made reasonable efforts to maintain the children in their own home, that the best interests of the children were for DHS to place them with a foster home, that DHS make reasonable efforts to reunify the family, and that, among other things, J.P. enter into a Service Agreement with DHS setting forth the requirements for her to regain custody of the children.

¶ 4. On June 5, 1995, the family court held a review hearing to determine whether J.P.'s children could be returned to her custody and ordered such things as that the children remain with DHS for appropriate placement, that DHS obtain a psychological evaluation of T.A.P., that J.P. attend individual counseling until successfully discharged therefrom, and that DHS initiate proceedings to terminate C.P.'s parental rights. The court further ordered that DHS obtain a home evaluation on the residence of J.P. from the appropriate agency in Gallipolis, Ohio, and that the DHS would be denied foster care reimbursement from the federal government because it failed to request a home study for a period of time of 100 days or more equated to a failure to make a reasonable effort toward reunification of the family.

¶ 5. On November 30, 1995, DHS filed a motion for review hearing to consider making permanent plans for the children. On January 29, 1996, such hearing occurred. The January 29th Order, administratively amended on August 26, 1996, required DHS to maintain the children, directed DHS to cease providing services to J.P., and directed DHS to file appropriate proceedings to include J.P. as party defendant in the petition to terminate C.P.'s parental rights.

¶ 6. The Petition to Terminate Parental Rights was filed July 1, 1996, in the Harrison County Chancery Court. Citing the termination of parental rights statute, Miss.Code Ann. § 93-15-103, DHS alleged, among other things, abandonment and desertion of the children as well as failure to eliminate ongoing behavior preventive of placement of the children with the parents despite DHS's diligence. DHS further alleged that, while the children spent 1 year under the care and custody of DHS and despite DHS's diligent efforts to develop and implement a plan to return the children to J.P., J.P. failed to exercise reasonable available visitation and failed to implement the agreed upon plan so that DHS was unable to return the children to J.P. On September 6, 1996, the chancery court appointed Frank McCreary Guardian Ad Litem for the children. In the chancery court, on September 27, 1996, J.P. filed her Answer to Petition to Terminate Parental Rights and Cross-Motion for Custody. Therein, J.P. sought to be restored as custodial parent to her children.

¶ 7. On October 8, 1996, in family court, J.P. filed a Motion to Reconsider or, in the Alternative to Transfer Jurisdiction. J.P. requested the family court to reconsider its January 29, 1996, recommendation to terminate parental rights or, in the alternative, transfer the matter for any determination of custody to the Harrison County Chancery Court on the grounds of judicial economy that, should J.P.'s parental rights not be terminated, the chancery court could determine custody without transferring the matter back to the family court.

¶ 8. On October 11, 1996, in both the chancery court and the family court, DHS filed its Answer to Cross Motion for Custody and Motion for Transfer and for Other Relief. DHS argued that the issue of custody and/or visitation had been adjudicated by the family court and, therefore, were res judicata to J.P. as well as an issue for, in the interests of judicial economy, the family court. DHS further argued that judicial economy warranted consolidation of the cross-complaint and the termination because the family court both may hear termination cases and is the proper court for custody and/or visitation issues. DHS also argued: (1) that the court not reconsider its recommendation of filing the termination petition because such was not in the best interests of children, and (2) that transfer of such matter would require the chancery court's relitigation of facts already considered by the family court.

¶ 9. On October 18, in both the family and chancery courts, J.P. filed her Answer to Answer to Cross-Motion for Custody and Motion for Transfer and for Other Relief. J.P. objected to DHS's request to transfer jurisdiction of the termination petition back to family court. J.P. further objected to DHS's statement that family court custody and/or visitation actions are res judicata as to such matters litigated in chancery court.

¶ 10. On November 4, 1996, the family court issued an opinion and order in which it stated that it had already rendered its decision regarding termination and that there was no "authority for this Court to transfer to Chancery Court jurisdiction of the issue concerning custody for any child over whom this Court had original jurisdiction. In the absence of such authority, the Court may not so act." The court further stated that DHS's argument that the case be transferred to family court was not properly before it. The court stated that it may not force another court to act, but that, if DHS dismissed its termination proceeding, it could file in the family court.

¶ 11. On November 13, 1996, the chancery court terminated C.P.'s parental rights for abandonment, among other reasons, and awarded DHS full care and custody of the children. Included in DHS's authority to provide for the children was the ability to place the children for adoption if such were in the best interests of such children. On December 19, 1996, the chancery court ordered that it would try the termination of parental rights petition and that all issues of custody and/or visitation were reserved to the family court.

¶ 12. On January 8, 1997, the chancery court, per Judge Thomas Wright Teel, entered judgment, which it amended on February 3, 1997. The court's amended judgment held that DHS had failed to meet its burden of proof to terminate J.P.'s parental rights. The court specifically cited DHS's failure to timely note problematic behavior as well as its failure to timely notify J.P. of a definitive return plan or to give her adequate time to comply before seeking severance of a working arrangement. Nonetheless, the court pointed out J.P. missed visits, evidenced poor written communication with DHS, evidenced poor telephonic communication, owns no vehicle, and is on a "financial see-saw." The court noted:

[T]hat neither poverty nor lack of resources are grounds for termination; however, many of these matters reflect on parenting and on one's priorities. On the other hand, her attending the parenting courses and current employment record and attempt to have an adequate home for the children is quite commendable. Certainly, she loves these children; certainly, they love her.

The court found that it had no jurisdiction over custodial issues and referred the matter to family court.

¶ 13. In the family court, on January 10, 1997, J.P. filed a motion to renew her request to transfer jurisdiction to the chancery court or, in the alternative, for a hearing to immediately award her visitation and custody. J.P. also sought a temporary order granting immediate unsupervised visitation. On January 15, 1997, the family court "overruled" the motion to transfer pointing out it was the only forum with jurisdiction, appointed D. Scott Gibson Guardian Ad Litem, and ordered the motion for custody and/or visitation be set for hearing at a time convenient to counsel. J.P. objected to Gibson's appointment, and, because of such objection, Gibson requested that he be replaced. DHS then filed a response in which it reaffirmed that the family court maintained original and exclusive jurisdiction, objected to transferring custody or unsupervised visitation rights to J.P., and voiced no...