K.D.F. v. J.L.H., No. 2004-CA-01320-SCT.
| Decision Date | 25 May 2006 |
| Docket Number | No. 2004-CA-01320-SCT. |
| Parties | K.D.F. and J.C.F. v. J.L.H. |
| Court | Mississippi Supreme Court |
E. Foley Ranson, Ocean Springs, attorney for appellant.
Donald P. Sigalas, Pascagoula, attorney for appellee.
Before SMITH, C.J., CARLSON and DICKINSON, JJ.
¶ 1. This is an adoption case which involves a chancellor's refusal to terminate the parental rights of a natural father on the grounds of abandonment or moral/mental unfitness and the subsequent denial of the Appellants' adoption petition. A second matter concerns the chancellor's award of temporary custody of the child to the natural father. The question presented is whether the chancellor committed manifest error in finding the Appellants failed to present clear and convincing evidence of the natural father's unfitness to maintain his parental rights.
¶ 2. While working as a convenience store clerk in June 2000, John Harris,1 age 26, met Amy Rogers, age 18. Harris was living with his parents while attending the University of South Alabama, and Rogers was unemployed and had no permanent residence. When Harris and Rogers met, Rogers had already given birth to two illegitimate children, one given up for adoption and the other temporarily taken from her by the Jackson County Department of Human Services.
¶ 3. Within a few weeks, Rogers moved into Harris' parents' home, and the two began having sexual relations, part of the time without birth control. Approximately two months later, Rogers stayed out all night, and Harris forced her to leave his parents' home.
¶ 4. Rogers quickly resumed her relationship with Robert Hicks, a man she had previously dated and who was the father of one of her children. Shortly after the breakup, Harris learned Rogers was pregnant through a phone call he received from Hicks, who requested money for Rogers to have an abortion. Harris contacted an attorney to inquire whether he could stop the abortion, but he was informed he could not. He therefore assumed he had no rights with respect to the unborn child.
¶ 5. In late October 2000, Rogers went to work for Kim and Jack Foster ("the Fosters") in their laundry and dry cleaning business. In February 2001, Rogers advised the Fosters that she intended to put her baby up for adoption. After some discussion, Rogers agreed to allow the Fosters to adopt her baby. She repeatedly told the Fosters that Hicks was the father of her unborn child.
¶ 6. On May 21, 2001, Rogers gave birth to Elizabeth. The Fosters took Elizabeth from the hospital to their home where she has since lived. On June 5, 2001, Rogers executed a Consent to Adoption agreement with the Fosters. A Petition for Adoption, naming Rogers and Hicks as Elizabeth's natural parents, was filed on August 9, 2002.
¶ 7. From August 2000 (according to Harris) or October 2000 (according to Rogers) until late July 2002, Harris had no contact with Rogers. After graduating from college in May 2001, Harris enrolled in the Mississippi College School of Law. He left the law school after the fall semester and returned home to Pascagoula in the summer of 2002. At some point during the semester, Harris acquired Elizabeth's birth announcement and kept it.
¶ 8. In late July 2002, Harris ran into Rogers at a grocery store where she showed him a picture of Elizabeth. After this encounter, Harris consulted an attorney about his potential parental rights. After this meeting, Rogers informed the Fosters that Harris, not Hicks, was Elizabeth's biological father.
¶ 9. In September 2002, Harris filed an objection to the Fosters' Petition for Adoption. DNA testing proved Harris was Elizabeth's biological father. The Fosters filed an Amended Petition for Adoption and for Termination of Parental Rights, naming Harris as the defendant. Harris then filed a Motion to Establish Paternity and an Answer to the Fosters' Petition. Chancellor Pat H. Watts, Jr., joined these issues.
¶ 10. The chancellor appointed Ms. Janice Perrealt, Esquire, as guardian ad litem for Elizabeth. She prepared and filed a report recommending the Fosters be allowed to adopt Elizabeth based on Harris' abandonment.
¶ 11. On February 6, 2004, the chancellor entered his Opinion denying the Fosters' adoption petition and awarding temporary custody of Elizabeth to Harris. Final Judgement was entered on March 9, 2004. The Fosters then filed a Motion for New Trial, to Alter and Amend Judgment and for Reconsideration. Chancellor Watts entered an Order on June 24, 2004, denying the Fosters' requested relief, but awarding physical custody of Elizabeth to the Fosters "until the Judgment of March 9, 2004 is enforceable, or until further order of this Court."
¶ 12. On June 24, 2004, the Fosters appealed Chancellor Watts' Order.2 The Fosters also filed an Application for Stay of Judgment Pending Appeal seeking to retain physical custody of Elizabeth during the appeals process. The chancellor entered a Judgment granting physical custody of Elizabeth to the Fosters until final decision on appeal, subject to Harris' visitation as previously ordered.
¶ 13. The Fosters raise two issues for review by this Court: (1) whether the chancellor erred in denying their petition to adopt Elizabeth; and (2) whether the chancellor erred in awarding temporary physical custody of Elizabeth to Harris.
¶ 14. The Fosters claim the chancellor erred in denying their petition to adopt Elizabeth and to terminate Harris' parental rights. Under this Court's well-established standard of review concerning the termination of parental rights, "[t]he chancellor's findings of fact are viewed under the manifest error/substantial credible evidence test." Vance v. Lincoln County Dep't of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991) (citing Bryant v. Cameron, 473 So.2d 174, 179 (Miss. 1985); Veselits v. Cruthirds, 548 So.2d 1312, 1316 (Miss.1989)). Accordingly, this Court does not ask how it would have decided the case ab initio; rather, we examine whether credible proof exists to support the chancellor's findings of fact by clear and convincing evidence. S.N.C. v. J.R.D., 755 So.2d 1077, 1080 (Miss.2000). It is not this Court's role to substitute its judgment for the chancellor's. Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss. 2002).
¶ 15. A chancellor must look to several statutory provisions as well as established case law when determining whether to terminate a natural parent's rights and permit a contested adoption. Mississippi Code Annotated Section 93-17-6 dictates when a father has a right to object to an adoption. The relevant sections state:
(4) Proof of an alleged father's full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:
(a) Provided financial support, including, but not limited to, the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, and contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child; or
(b) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
(5) If the court determines that the alleged father has not met his full responsibilities of parenthood, it shall enter an order terminating his parental rights and he shall have no right to object to an adoption under Section 93-17-7.
(6) If the court determines that the alleged father has met his full responsibilities of parenthood and that he objects to the child's adoption, the court shall set the matter as a contested adoption in accord with Section 93-17-8.
Miss.Code Ann. § 93-17-6 (2002).
¶ 16. When a natural parent objects to the adoption of his or her infant child, a chancellor may nonetheless permit the adoption if the objecting parent has "abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, those matters set out in subsection (2) of this section." Miss.Code Ann. § 93-17-7(1) (2002). The criteria to be considered by the chancellor are set forth in the statute, and include in relevant part:
(b) The parent has not consistently offered to provide reasonably necessary food, clothing, appropriate shelter and treatment for the child.
(c) The parent suffers from a medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.
(d) Viewed in its entirety, the parent's past or present conduct, including his criminal convictions, would pose a risk of substantial harm to the physical, mental or emotional health of the child.
(f) The enumeration of conduct or omissions in this subsection (2) in no way limits the court's power to such enumerated conduct or omissions in determining a parent's abandonment or desertion of the child or unfitness under subsection (1) of this section.
Miss.Code.Ann. § 93-17-7(2).
¶ 17. In a contested adoption, Mississippi Code Annotated Section 93-17-8(1)(c) requires the chancellor to "determine first whether or not the objecting parent is entitled to...
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