E.K. v. Miss. Dep't of Child Prot. Servs., NO. 2017-CA-00506-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtCHAMBERLIN, JUSTICE, FOR THE COURT
Citation249 So.3d 377
Parties In the Interest of E.K., a Minor, Timothy King and Elizabeth King v. MISSISSIPPI DEPARTMENT OF CHILD PROTECTION SERVICES
Docket NumberNO. 2017-CA-00506-SCT
Decision Date02 August 2018

249 So.3d 377

In the Interest of E.K., a Minor, Timothy King and Elizabeth King
v.
MISSISSIPPI DEPARTMENT OF CHILD PROTECTION SERVICES

NO. 2017-CA-00506-SCT

Supreme Court of Mississippi.

August 2, 2018


ATTORNEY FOR APPELLANTS: CHADWICK L. SHOOK, HATTIESBURG

ATTORNEY FOR APPELLEE: LAWRENCE E. HAHN, COLUMBIA

BEFORE RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. This appeal arises from the Marion County Youth Court's adjudication of E.K.1 as a neglected child. A number of

249 So.3d 379

errors stem from this adjudication. First, E.K. was adjudicated neglected even though her mother was not properly before the youth court and her father received no notice of the adjudication hearing. Second, after review, we find that the neglect petition was legally insufficient to provide notice to E.K. or her parents of the neglect charges. Third, the evidence offered to support a finding of neglect at the adjudication hearing was legally insufficient. As such, we vacate the youth court's adjudication order and render judgment in favor of E.K. and her parents.

FACTS AND PROCEDURAL HISTORY

¶ 2. Elizabeth A. King and Timothy King are the parents of E.K. E.K. was born on December 31, 2001. With a history of ADHD, epilepsy, autism, mental disability and obsessive, compulsive disorder (OCD), E.K. functioned on the level of a two-year-old.

¶ 3. Elizabeth and Timothy had been separated for two weeks at the time of the initial investigation in this case. They had been divorced for four years in the past before having remarried.

¶ 4. In December 2015, the Mississippi Department of Human Services Division of Family and Children's Services2 ("DHS") was contacted by law enforcement officials about Elizabeth and E.K. DHS responded to Elizabeth's residence on December 4, 2015. Law enforcement officers on the scene were concerned that Elizabeth was high on drugs, due to her repetitive 911 calls. According to the report, Elizabeth had called 911 multiple times, claiming that Timothy was in her attic or outside her home attempting to gain access to her residence.

¶ 5. DHS prepared an investigative report that catalogued its interactions with Elizabeth and E.K. "No abuse or neglect was substantiated" during DHS's visit, and the report found that Elizabeth loved E.K., was protective of her, and assisted her. Elizabeth and E.K. had a "great relationship." Further, there was no evidence of serious physical harm or injury and no reported or evident physical injuries. Timothy's history of domestic violence toward Elizabeth, Elizabeth's fear of Timothy, and the fact that Timothy "has not harmed [E.K.]" were catalogued in the report. Elizabeth denied using drugs but did test positive for marijuana use. Concerning Elizabeth's positive test for marijuana, the report stated that "this is being addressed and will be recommended for services by the agency." One narrative attached to the investigative report recounted that Elizabeth admitted to taking a "Colonapin [sic] to try to get some sleep." Elizabeth acknowledged that the "Colonapin"3 was not prescribed for her by a physician.

¶ 6. According to the report, Elizabeth secured a protective order against Timothy and changed the locks to her residence. Last, the report noted that DHS was ordered by the Marion County Youth Court

249 So.3d 380

"to open prevention case to monitor to [sic] safety in the home."

¶ 7. The record contains a letter that accompanied the DHS investigative report and recommended that the youth court informally monitor the Kings. The initial intake order entered in the youth court followed the letter's recommendation and ordered informal monitoring of the Kings or E.K. DHS's court summary next revealed that Elizabeth had entered a service agreement on January 27, 2016. According to the summary, Elizabeth had tested negative for drugs on January 5, 2016, and had tested "negative dilute" on February 2, 2016; March 3, 2016; and March 21, 2016. On April 20, 2016, Elizabeth had informed DHS that she was tired and frustrated and would not take any more drug tests.

¶ 8. As a result of Elizabeth's refusal, a second intake order was entered in the youth court. This intake order directed a formal petition to be entered. DHS directed a formal petition to adjudicate E.K. as a neglected child be entered. Count 1 of the petition alleged:

That on or about 04/20/2016, in MARION COUNTY, MISSISSIPPI, [E.K.] did become a NEGLECTED CHILD as defined by § 43-21-105(1) of the Mississippi Code of 1972, Annotated. Prevention case was open [sic] to monitor the safety issues in the home. During a visit to the home the mother told the DHS Worker that she was tires [sic] and frustrated and would not do any more drug tests.

Renee Porter was appointed as the attorney and guardian ad litem (GAL) for E.K.

¶ 9. DHS issued summons to Elizabeth and Timothy on May 18, 2016, for an adjudication hearing on June 6, 2016. The summons was returned unserved on June 2, 2016, with the note: "unable to make contact."

¶ 10. The adjudication hearing was held on June 6, 2016. Elizabeth, E.K., and the GAL were present. At the hearing, Michelle Tony, a DHS caseworker, testified to the grounds for the neglect petition. Tony testified that the agency had been contacted by law enforcement officers who were concerned that Elizabeth was mentally ill. Tony maintained that "[t]he home checked out fine" and that a prevention case was opened after Elizabeth tested positive for marijuana. In response to the GAL's questioning, Tony also mentioned that Elizabeth was refusing to take any additional drug tests. From the bench, the youth court then adjudicated E.K. as neglected.

¶ 11. It appears from the transcript that the youth court immediately proceeded to the disposition hearing.4 The GAL asked Elizabeth if she would take a drug test, and—for the first time on the record—Elizabeth spoke, replying: "I'll go take a drug test, but my child ain't neglected. And you ... every time you are at my house, you state that [E.K.] is in the best of care. Did you not? Do you not--" The prosecutor immediately objected, and the GAL moved to continue the hearing to allow Elizabeth to take a drug test. The court then questioned Elizabeth concerning the "negative-dilute" drug tests. The

249 So.3d 381

court informed Elizabeth, "We're concerned about drug use. If there's no drug use, we're not concerned. We are concerned about the child. She seems to be doing well under your care, but we want to continue that. We just need a little help from you." Elizabeth stated, "If [the hair follicle drug test is] court ordered, I'll take it." The youth court continued the hearing until June 20, 2016, and ordered Elizabeth and Timothy to take a hair-follicle drug test.

¶ 12. On June 20, 2016, the youth court entered an emergency custody order, awarding custody of E.K. to the Marion County Department of Human Services pending a shelter hearing. Another emergency custody order awarded custody of E.K to DHS and ordered law enforcement officials to assist in locating E.K. At the shelter hearing held on June 28, 2016, Tony explained that E.K. could not be located during this time. Tony testified that on June 25, 2016, law enforcement officials found E.K. and DHS took custody of her. At this same hearing, counsel for the Kings questioned the sufficiency of the adjudication of E.K. as neglected. The GAL objected to the attacks on the adjudication of E.K. After the hearing, the youth court determined that custody should remain with DHS. The youth court also ordered Elizabeth and Timothy to submit to a hair-follicle drug test.

¶ 13. Elizabeth's and Timothy's counsel formally entered an appearance on July 1, 2016, and filed two motions. The first motion was to set aside the shelter order, to return E.K. to Elizabeth and Timothy and to stay local proceedings; the second motion was for permission to seek interlocutory appeal. The second motion attacked the evidentiary basis of the adjudication of E.K. as a neglected child. After a hearing, the youth court entered an order permitting Elizabeth's and Timothy's interlocutory appeal "of this Court['s] June 6, 2016 Adjudication Order...."5

¶ 14. On February 21, 2017, the youth court again ordered Elizabeth to submit to a hair-follicle test due to her test showing "diluted." This time, though, it found that Timothy did not have to submit to a hair follicle test "in that none of his test[s] were questionable." Elizabeth submitted to the hair-follicle test on March 3, 2017. On April 3, 2017, the youth court entered a permanency order, granting custody of E.K to Elizabeth and Timothy.6

¶ 15. E.K., Elizabeth, and Timothy now appeal the sufficiency of the neglect petition, the sufficiency of the evidence supporting adjudication, the lack of notice and service of process to Elizabeth and Timothy for the adjudication hearing, several of the custody orders and the orders concerning the hair-follicle drug tests. The issues related to the adjudication order are dispositive of the appeal before us.

STANDARD OF REVIEW

¶ 16. " ‘The appellate standard of...

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6 practice notes
  • Courtney v. State, NO. 2017-KA-01267-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • May 2, 2019
    ...must charge the offense with the same particularity required in a criminal indictment ." E.K. v. Miss. Dep't of Child Prot. Servs. , 249 So.3d 377, 386 (Miss. 2018) (emphasis added) (quoting In re Dennis , 291 So.2d 731, 733 (Miss. 1974) ); see also Miss. Code Ann. § 43-21-455(4) (Rev. 2015......
  • Kirkley v. Jackson Cnty. Dep't of Child Prot. Servs., NO. 2018-CA-00950-COA
    • United States
    • Court of Appeals of Mississippi
    • October 13, 2020
    ...judge may appoint counsel to represent the indigent parent or guardian in the proceeding. E.K. v. Miss. Dep't of Child Prot. Servs. , 249 So. 3d 377, 382 (¶19) (Miss. 2018). The act can be commended, but we must now encourage our courts to go even further by appointing counsel to the indige......
  • McCoy v. Adams Cnty. Youth Court (In re Interest of M.M.), 2018-CA-01464-COA
    • United States
    • Court of Appeals of Mississippi
    • March 16, 2021
    ...court proceedings is the same as that which we apply to appeals from chancery court. ...’ " E.K. v. Miss. Dep't of Child Prot. Servs. , 249 So. 3d 377, 381 (¶16) (Miss. 2018) (quoting In re J.P. , 151 So. 3d 204, 208 (Miss. 2014) ). "When reviewing a decision of a chancellor, this Court app......
  • McCoy v. Adams Cnty. Youth Court, NO. 2018-CA-01464-COA
    • United States
    • Mississippi Court of Appeals
    • March 16, 2021
    ...court proceedings is the same as that which we apply to appeals from chancery court. . . .'" E.K. v. Miss. Dep't of Child Prot. Servs., 249 So. 3d 377, 381 (¶16) (Miss. 2018) (quoting In re J.P., 151 So. 3d 204, 208 (Miss. 2014)). "When reviewing a decision of a chancellor, this Court appli......
  • Request a trial to view additional results
7 cases
  • Courtney v. State, NO. 2017-KA-01267-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • May 2, 2019
    ...must charge the offense with the same particularity required in a criminal indictment ." E.K. v. Miss. Dep't of Child Prot. Servs. , 249 So.3d 377, 386 (Miss. 2018) (emphasis added) (quoting In re Dennis , 291 So.2d 731, 733 (Miss. 1974) ); see also Miss. Code Ann. § 43-21-455(4) (Rev. 2015......
  • Kirkley v. Jackson Cnty. Dep't of Child Prot. Servs., NO. 2018-CA-00950-COA
    • United States
    • Court of Appeals of Mississippi
    • October 13, 2020
    ...judge may appoint counsel to represent the indigent parent or guardian in the proceeding. E.K. v. Miss. Dep't of Child Prot. Servs. , 249 So. 3d 377, 382 (¶19) (Miss. 2018). The act can be commended, but we must now encourage our courts to go even further by appointing counsel to the indige......
  • Jones Cnty. v. Estate of Bright, 2021-IA-00631-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 17, 2022
    ...the word 'shall' is mandatory and the word 'may' is discretionary." King v. Miss. Dep't of Child Prot. Servs. (In re Int. of E.K.), 249 So.3d 377, 383 (¶ 21) (Miss. 2019) (citing In re Int. of D.D.B. v. Jackson Cnty. Youth Ct., 816 So.2d 380, 382 (¶ 7) (Miss. 2002)). "When an action is file......
  • McCoy v. Adams Cnty. Youth Court (In re Interest of M.M.), 2018-CA-01464-COA
    • United States
    • Court of Appeals of Mississippi
    • March 16, 2021
    ...court proceedings is the same as that which we apply to appeals from chancery court. ...’ " E.K. v. Miss. Dep't of Child Prot. Servs. , 249 So. 3d 377, 381 (¶16) (Miss. 2018) (quoting In re J.P. , 151 So. 3d 204, 208 (Miss. 2014) ). "When reviewing a decision of a chancellor, this Court app......
  • Request a trial to view additional results

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