Jones v. Brown, 2013–CA–01769–COA.

• Decision Date: 06 January 2015
• Docket Number: No. 2013–CA–01769–COA.,2013–CA–01769–COA.
• Parties: Margaret JONES, Appellant v. David BROWN, Appellee.
• Court: Mississippi Court of Appeals

154 So.3d 919

Margaret JONES, Appellant

v.David BROWN, Appellee.

No. 2013–CA–01769–COA.

Court of Appeals of Mississippi.

Jan. 6, 2015.

Harry Jones Rosenthal, Natchez, attorney for appellant.

Levoy Bryant Agnew IV, Jackson, Lee B. Agnew Jr., Terry, attorneys for appellee.

Before LEE, C.J., ISHEE and FAIR, JJ.

Opinion

FAIR, J., for the Court:

¶ 1. “Margaret Jones” and “David Brown” had a daughter, “Christina,” out of wedlock.¹ After they broke up, David took Christina and sued for custody. Margaret's mother intervened, contending that neither natural parent was fit because of their histories of drug use. The chancery court found the natural-parent presumption intact and awarded custody to David. Margaret appeals. As the chancellor's findings are supported by substantial evidence, we affirm.

FACTS

¶ 2. Margaret and David began an “on again, off again” romantic relationship in 2008. Christina was born in November 2011. The extent of David's attention to the pregnancy was disputed. However, a few months after Christina was born, the parties moved into a house together in Jackson. They lived there until September 2012, when David took the child and left. Prior to trial, the Hinds County Chancery Court ordered temporary joint custody alternately on a weekly basis.

¶ 3. David admitted he had a history of substance abuse going back twenty years or more. He testified that he had successfully completed rehabilitation in 2010 and was no longer using drugs; but Margaret was still addicted to prescription medicines and crystal methamphetamine. Margaret denied ever abusing drugs, but during the course of the litigation, she did not fully cooperate with court-ordered drug testing and on one occasion tested positive for crystal methamphetamine. Margaret alleged that David was physically and mentally abusive and was still addicted to drugs. She claimed that David had been passing drug tests by using someone else's urine.

¶ 4. The chancellor did not find Margaret's allegations credible, and awarded custody to David based on his rehabilitation, steady employment, and superior living conditions.

¶ 5. Margaret's mother abandoned her claims of neglect or abuse when she testified at trial, and she has not appealed the denial of her petition.

STANDARD OF REVIEW

¶ 6. The standard of review in domestic-relations cases is limited. Arrington v. Arrington, 80 So.3d 160, 164 (¶ 11) (Miss.Ct.App.2012) (citing In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010) ). This Court will not reverse a chancellor's findings concerning modification of custody unless the chancellor was manifestly wrong or clearly erroneous, or applied an improper legal standard. In re E.C.P., 918 So.2d 809, 822 (¶ 58) (Miss.Ct.App.2005) (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002) ).

¶ 7. In appeals from child-custody decisions, our polestar consideration, like the chancellor's, must be the best interest of the child. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App.2009) (citing Hensarling, 824 So.2d at 587 (¶ 8) ). “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor's decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So.2d 944, 950 (¶ 14) (Miss.Ct.App.2004) (quoting Bower v. Bower, 758 So.2d 405, 412 (¶ 33) (Miss.2000) ).

DISCUSSION

¶ 8. We have rearranged Margaret's three issues for the purpose of our analysis.

1. Guardian Ad Litem

¶ 9. Because there were allegations of neglect, the chancellor appointed a guardian ad litem for Christina. The chancellor chose a law student from Mississippi College School of Law, Thujee Lhendup, who was admitted to limited practice under the supervision of Shirley Kennedy, a professor who is also a licensed attorney. Lhendup was assigned to investigate the allegations and make recommendations as to Christina's best interest, as an arm of the court. The chancellor was very complimentary of Lhendup's performance, describing him as exceptionally energetic and thorough. The record bears that out.

¶ 10. Margaret takes issue not with the guardian ad litem's execution of his duties, but with the nature of his assignment. She contends that the chancellor was required to appoint a guardian ad litem to act as an attorney for Christina, not one who would investigate and make recommendations as an arm of the court. Margaret's argument is based on the Mississippi Supreme Court's decision in S.G. v. D.C., 13 So.3d 269, 280–81 (¶ 47) (Miss.2009), where the court discussed the importance of clearly defining the role of the guardian ad litem:

In Mississippi jurisprudence, the role of a guardian ad litem historically has not been limited to a particular set of responsibilities. In some cases, a guardian ad litem is appointed as counsel for minor children or incompetents, in which case an attorney-client relationship exists and all the rights and responsibilities of such relationship arise. In others, a guardian ad litem may serve as an arm of the court—to investigate, find facts, and make an independent report to the court. The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the guardian ad litem's role at trial may vary depending on the needs of the particular case. The guardian ad litem may, in some cases, participate in the trial by examining witnesses. In some cases, the guardian ad litem may be called to testify, and in others, the role may be more limited.

Margaret latches onto language from another case, In re R.D., 658 So.2d 1378, 1384 (Miss.1995), where the supreme court held minors had a due process right to “representation by” a guardian ad litem when abuse or neglect was alleged. See also Miss.Code Ann. § 93–5–23 (Rev. 2013); Miss.Code Ann. § 43–21–121 (Rev. 2009). From this Margaret argues that the chancery court was required to appoint a guardian ad litem to represent Christina as her attorney and not as an arm of the court.

¶ 11. This argument is erroneous and relies on cherry picking language from In re R.D.

In fact, the court there repeatedly stated that (in the context of a termination of parental rights proceeding where abuse or neglect is at issue) the guardian ad litem had a duty to represent the child's best interest. See id. at 1382–83, 1386. The court cited with approval cases outlining the role of a guardian ad litem as an arm of the court. See id. at 1383 (citing Short v. Short, 730 F.Supp. 1037, 1038 (D.Colo.1990) ; Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441, 444 (Ct.App.1990) ).

¶ 12. Moreover, the supreme court in S.G. v. D.C. made a point of emphasizing that prior dictates of that court had been confusing or ambiguous on the proper role of a guardian ad litem. The court urged chancellors to make it clear what was expected:

We find no fault with any of these diverse duties and responsibilities a chancellor might assign to a guardian ad litem in a particular case. However, we encourage chancellors to set forth clearly the reasons an appointment has been made and the role the guardian ad litem is expected to play in the proceedings. To avoid potential problems regarding confidential communications and other expectations, chancellors should make clear: (1) the relationship between the guardian ad litem and the children, incompetent, or other ward of the court; (2) the role the guardian ad litem will play in the trial; and (3) the expectations the trial judge has for the guardian ad litem. The role a chancellor expects a guardian ad litem to play should be set forth clearly in the written order of appointment. Doing so will make the guardian ad litem's relationships and general responsibilities clear to each of the parties (including those wards old enough to comprehend), the attorneys, the court, and to the guardian ad litem.

S.G., 13 So.3d at 281 (¶ 48). The Court also acknowledged that the chancellor must have discretion and flexibility in defining the guardian's duties on a case-by-case basis:

Setting out such expectations should not permanently bind the court should needs change as the litigation progresses. Judges may revise these expectation by order as the need arises, so long as the guardian ad litem is not required to breach client confidences or other ethical duties by the change in responsibilities. Chancellors should be free to assign duties to a guardian ad litem as the needs of a particular case dictate, and the role of the guardian ad litem should at all times be clear.

Id. at (¶ 49).

¶ 13. Furthermore, in distinguishing between the two roles of a guardian ad litem, the S.G. court cited a case involving allegations of abuse or neglect as its example of an instance where the guardian ad litem should serve the role of investigator and arm of the court. See id. at (¶ 43) (citing S.N.C. v. J.R.D. Jr., 755 So.2d 1077, 1082 (¶¶ 15–17) (Miss.2000) ). The example where the guardian ad litem should act more strictly as the child's fiduciary or attorney was a will contest in which the child was a beneficiary. Id. (citing In re Prine's Estate, 208 So.2d 187, 192 (Miss.1968) ). The court in S.G. also discussed potential concerns about confidentiality, but that was clearly not an issue in this case, as Christina was not old enough to meaningfully communicate with someone she believed was her attorney. See id. at 282 (¶¶ 53–54).

¶ 14. The record reflects that the guardian ad litem in this case was properly directed to act as an arm of the court in representing the best interest of the child, and he executed that duty faithfully. This issue is without merit.

2. Domestic Violence

¶ 15. Next, we consider Margaret's argument that David should have been found “unfit” based on her allegations of domestic violence.² She points out that David pled guilty to misdemeanor domestic violence relating to an incident with Margaret in 201...