Kirkley v. Jackson Cnty. Dep't of Child Prot. Servs.

• Citation: 304 So.3d 184
• Decision Date: 13 October 2020
• Docket Number: NO. 2018-CA-00950-COA,2018-CA-00950-COA
• Parties: In the INTEREST OF J.K., a Minor: Merle Glenn Kirkley, Appellant v. Jackson County Department of Child Protection Services and J.L.M.K., a Minor, by and Through His Next Friend, Laquita Reed, Appellees
• Court: Mississippi Court of Appeals

304 So.3d 184

In the INTEREST OF J.K., a Minor:

Merle Glenn Kirkley, Appellant

v.Jackson County Department of Child Protection Services and J.L.M.K., a Minor, by and Through His Next Friend, Laquita Reed, Appellees

NO. 2018-CA-00950-COA

Court of Appeals of Mississippi.

October 13, 2020

ATTORNEYS FOR APPELLANT: CHAD KENNETH KING, CAMERON MATTHEW McCORMICK, Pascagoula

ATTORNEY FOR APPELLEES: TONYA MICHELLE BLAIR, Jackson

EN BANC.

BARNES, C.J., FOR THE COURT:

¶1. Merle Kirkley appeals the termination of his parental rights, arguing that the Jackson County Youth Court (1) lacked jurisdiction over the adjudication of neglect and termination-of-parental-rights (TPR) proceedings and (2) erred in finding there was clear and convincing evidence to support the termination of Kirkley's parental rights. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Kirkley and Cierra Cavanagh had a child, "John," who was born in November 2014.¹ On April 17, 2015, a social worker for the Jackson County Department of Child Protection Services (CPS) conducted a welfare check on the five-month-old child at a motel in Ocean Springs, Mississippi. Police found Xanax, marijuana, liquid steroids, three Oxymorphone pills, and a Suboxone

strip in the room. Kirkley and Cavanagh were arrested for possession of a controlled substance (a misdemeanor), and John was taken into the custody of the Department of Human Services (DHS).

¶3. On April 21, 2015, the youth court judge appointed Denise Lee as the child's guardian ad litem (GAL). Kirkley was arrested again, on April 29, 2015, for possession of controlled substances in Harrison County. He entered Wings of Life for drug treatment on May 26, 2015, but left the facility one month later and entered another drug rehabilitation facility in Warren County in December 2015.

¶4. After three continuances, a youth court hearing was held on May 26, 2015. Kirkley, Cavanagh, the GAL, CPS/DHS representatives, and John's foster mother were in attendance at the hearing. The court ordered that custody of the child remain with the DHS, and an adjudication hearing was scheduled for June 10, 2015. The order also noted that "the permanent plan is reunification" and that the permanency hearing would be held on November 16, 2015. Kirkley was given a drug screen and tested positive for methamphetamine.

¶5. The following day, May 27, 2015, the Jackson County prosecuting attorney electronically filed a petition with the youth court, alleging that John was a neglected child, and a summons was sent to Kirkley. On June 10, the youth court entered an order, stating that a first call/adjudication hearing had been held and that both parents had denied the allegations in the petition. The parents were granted supervised visitation with John.

¶6. An adjudication hearing was held on October 26, 2015, with Kirkley attending via telephone because he was incarcerated in Louisiana for a parole violation. Both Kirkley and Cavanagh withdrew their former denials and entered a plea of no contest; so the child was adjudicated as a neglected child on the counts contained in the petition. Kirkley and Cavanagh waived the waiting period for disposition, and the youth court proceeded with that hearing. See Miss. Code Ann. § 43-21-601 (Rev. 2015). The DHS outlined the tasks the parents needed to complete for reunification with John, including drug screens, parenting classes, and aftercare programs. Specifically with regard to Kirkley, the DHS stated that he would be required to complete an alcohol and drug treatment program. Kirkley agreed to these requirements.

¶7. On April 4, 2016, a Harrison County Circuit Court grand jury indicted Kirkley for two counts of possession of a controlled substance, stemming from his April 29, 2015 arrest. The youth court entered an order on April 19, 2016, stating that a permanency hearing was held with neither parent in attendance. The court also noted:

Merle Kirkley failed to complete [alcohol and drug] treatment, and later was arrested on August 1, 2015. Since then Mr. Kirkley was ordered to drug court and he was participating in the love in action ministries in Laurel, MS. I spoke with the director of the program on April 18, 2016, and she indicated that "Merle is on the run." She indicated that he left the program.

The youth court adopted the permanency plan for "reunification with a parent or primary caretaker," as well as the concurrent plan for adoption, finding them in the child's best interest. The court further concluded, however, that the DHS had "documented compelling and extraordinary reasons why termination of parental rights would not be" in John's best interest at that time.

¶8. Kirkley was arrested in Louisiana and incarcerated at West Baton Rouge Parish Detention Center from April 23, 2016, to October 25, 2016. On July 11, 2016, a plan review hearing was held, wherein the youth court modified the permanent plan from reunification to TPR/adoption. Although neither parent attended the hearing, both parents were granted supervised visitation upon arrangement with the CPS.

¶9. A permanency review hearing was held on October 19, 2016. Kirkley attended via telephone. The youth court determined that the DHS had made reasonable efforts to effectuate a plan to meet the needs and best interest of the minor and accepted the recommended permanency plan of TPR/adoption. A permanency hearing was scheduled for April 17, 2017, and the youth court ordered Kirkley to keep his address and telephone number updated and to notify the court if he wished to participate in the permanency hearing via telephone.²

¶10. Kirkley entered a guilty plea to one count of possession of a controlled substance in the Harrison County Circuit Court on March 20, 2017, and he was sentenced to serve three years in the custody of the Mississippi Department of Corrections (MDOC).³ Kirkley was given a new family-service plan on March 23, 2017, requiring him to submit to random drug screens, "enroll and complete an after care program for a minimum of [twelve] months within five days of completion of inpatient treatment as approved by the [CPS], ... [p]rovide a safe, stable, drug and violence free home for [John]," and maintain contact with the child and the CPS. On May 8, 2017, the youth court entered an order continuing the hearing until May 17, 2017. The court's order noted Kirkley's mailing address was "C/O MDOC #150090, CMCF, 3794 Hwy 468, Pearl, MS 39208."

¶11. On March 27, 2017, the DHS filed a TPR petition with the youth court, which noted the couple's (1) habitual drug use, (2) failure to complete alcohol and drug treatment, (3) unwillingness to provide "reasonably necessary food, clothing, shelter, or medical care for the child," and (4) failure to "exercise reasonable visitation or communication with the child." The petition asserted that termination of Cavanagh's and Kirkley's parental rights was "appropriate," as reunification between Cavanagh or Kirkley and John was not "desirable towards obtaining a satisfactory permanency outcome."

¶12. On May 17, 2017, the youth court held the permanency hearing, with the GAL, CPS/DHS representatives, foster mother, and Kirkley present. The DHS was unable to locate Cavanagh, and it was later discovered she was in Illinois with family but planned to enter a rehabilitation facility in California. The court found that the DHS had made reasonable efforts towards the permanency plan of reunification previously adopted on April 19, 2016. The youth court set a TPR hearing for August 8, 2017, and appointed Kirkley an attorney to represent him at that hearing. A week later, on May 25, 2017, the youth court issued an amended order, which stated that the permanency plan for reunification was "no longer appropriate ... and [that] the permanency plan of TPR/adoption [was] appropriate and in the best interest of [John.]" Cavanagh filed a motion for a continuance in August 2017, which the youth court granted, rescheduling the hearing for November 7, 2017.

¶13. The GAL, CPS/DHS representatives, foster parents, Kirkley, and Cavanagh were present at the November 7 hearing, along with Kirkley's appointed attorney. At the hearing, Kirkley acknowledged his prior criminal history, including a malicious mischief conviction in 2009 and a business burglary conviction in 2012. He also agreed that he had been incarcerated for a majority of time that John was in the DHS's custody and was unable to complete his service plan.

¶14. Gloria Sims, the DHS social worker assigned to the case, testified that Kirkley had been given two service plans, one in 2015 and one in 2017 after he had been incarcerated. The 2017 plan stated that Kirkley needed in-patient treatment and "to maintain visitations with child as approved by [CPS]." Because he was incarcerated, he was allowed to write letters to the child. Kirkley was also to obtain and maintain financial stability, have random drug screens, "[r]efrain from physical and verbal altercations," and enroll in aftercare upon release from prison. Sims testified that Kirkley had not completed the service plan. Sims also testified that Kirkley had seen John only six times since the child had been in DHS custody (over two years), specifically noting that Kirkley had not seen John since March 2016 due to his incarceration because the agency does not take children to visit inmates. Sims opined that there was a substantial erosion of the relationship between Kirkley and his son.

¶15. The TPR hearing was continued until January 25, 2018, and the permanency review hearing was continued until April 16, 2018. Sims again discussed the DHS's efforts to help Kirkley complete his service plan, but, as mentioned in the prior hearing, the agency was "very limited" in what it could do except to tell him to "participate in any and all services or programs that they have while they're incarcerated." A December 27, 2017 order from the Warren County Circuit Court was also entered into evidence, stating...