Monk v. Fountain

• Decision Date: 12 May 2020
• Docket Number: NO. 2017-CA-01679-COA,2017-CA-01679-COA
• Citation: 296 So.3d 761
• Parties: Karen A. MONK, Appellant v. Lisa M. FOUNTAIN and David L. Fountain, Jr., Appellees
• Court: Mississippi Court of Appeals

296 So.3d 761

Karen A. MONK, Appellant

v.Lisa M. FOUNTAIN and David L. Fountain, Jr., Appellees

NO. 2017-CA-01679-COA

Court of Appeals of Mississippi.

May 12, 2020

ATTORNEY FOR APPELLANT: DIANNE HERMAN ELLIS, Ocean Springs

ATTORNEY FOR APPELLEES: CALVIN D. TAYLOR, Pascagoula

BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. Lisa and David Fountain are the legal and natural parents of K.F.¹ Karen Monk is David's stepsister and K.F.’s aunt. Monk filed a petition for custody of K.F. alleging, inter alia, that K.F. was "abused and neglected while in the custody of [Lisa] and/or [David]." The chancellor denied the petition, finding that Monk failed to overcome the natural parent presumption. On appeal, Monk argues that the chancellor erred by not appointing a guardian ad litem (GAL) and by not granting her visitation. For the reasons discussed below, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. K.F. was born in September 2009. Her parents, Lisa and David Fountain, married shortly thereafter. The Fountains have always had custody of K.F.

¶3. On March 24, 2014, Lisa filed a petition on behalf of herself, David, and K.F. for a domestic abuse protection order against David's stepsister, Karen Monk. Lisa alleged that Monk had sent the Fountains harassing text messages and repeatedly made false allegations about them to Medicaid and Lisa's employer. The Fountains also suspected that Monk had broken into their home, but there is no evidence to connect Monk to the burglary. Lisa testified in the instant case that her justice court petition was later dismissed because her allegations against Monk did not qualify as domestic abuse.

¶4. On March 31, 2014, Monk filed a petition for a guardianship or custody of K.F. Monk alleged that the Fountains had neglected K.F.’s "medical and other needs"; that their marriage was "violent and volatile"; that they failed "to use safe and proper child restraints for [K.F.], even allowing her to be transported without any ... restraint at all by an unlicensed driver with a history of driving under the influence"; that they drove "while intoxicated with [K.F.] in the car"; and that K.F. was "abused and neglected while in the care of [Lisa] and/or [David]." In addition, Monk alleged that the Fountains "committed Medicaid and other fraud regarding [K.F. and Lisa's two other minor children]." Monk requested sole legal and physical custody of K.F., an order requiring David and Lisa to pay child support to Monk, and a restraining order prohibiting David and Lisa from coming within 1,500 feet of Monk and K.F. Monk also asked the court to appoint a GAL.

¶5. The Fountains answered Monk's petition and denied her allegations. They alleged that they were fit and proper persons to have custody of K.F. and that Monk's petition was frivolous and intended solely to harass them. The Fountains also filed a counterclaim for a restraining order against Monk.

¶6. Trial in the case was reset twice. In March 2015, Monk filed a motion to appoint a GAL. The motion was based on her petition "raising allegations of abuse and/or neglect by [Lisa and David]." However, Monk never attempted to set her motion for a hearing. Nor did she mention her request for a GAL at any time during the subsequent trial.

¶7. The case was continued again before the first day of trial in October 2015. The second day of trial was held in October 2017. The reasons for the two-year delay are not apparent from the record.

¶8. On the first day of trial, Monk called Lisa and David as adverse witnesses. Lisa and David denied that they had ever neglected or abused K.F. They also denied that they had ever driven under the influence with K.F. in the car. They testified that K.F. had little or no relationship with Monk during the first three-and-a-half years of K.F.’s life. Around the fall of 2012, K.F. began spending time with Monk and eventually began spending the night at Monk's house frequently. This lasted for a year or so until the Fountains became concerned that Monk had become "obsessive" and "controlling" about K.F. Lisa and David then began to limit contact between K.F. and Monk. Lisa and David testified that Monk began harassing them and making false allegations about them in retaliation. Lisa testified that she was also concerned when she learned during discovery that Monk was taking Norco, Oxycodone, Klonopin, Xanax, and other prescription medications.²

¶9. Monk also testified at trial. Her testimony is discussed below.

¶10. In November 2017, the chancery court entered an opinion and final judgment denying Monk's petition for guardianship or custody. The chancellor found that Monk failed to overcome the natural parent presumption by clear and convincing evidence. The chancellor found that Monk failed to prove that the Fountains had ever abandoned or deserted K.F. by leaving her in Monk's care for an extended period of time. The chancellor noted that Monk admitted on the second day of trial that it had been more than three years since she even saw K.F. The chancellor also found that Monk failed to prove that the Fountains drank excessively or that their drinking affected their ability to care for K.F.

¶11. The chancellor also rejected Monk's argument that the Fountains were unfit because Lisa's other daughter, I.A., was in the custody of I.A.’s paternal grandmother, Sandra Molina. Molina testified at trial. She acknowledged that she called the Mississippi Department of Human Services (DHS) around 2009 because David had spanked I.A. Molina did not approve of David, who had not yet married Lisa and was not I.A.’s father, being "the one doing the punishment at the home." Molina and Lisa subsequently agreed that I.A. would live with Molina, and DHS looked into the matter but took no action. Lisa continues to see I.A. regularly and pays for her to attend private school. Molina sees K.F., David, and Lisa regularly. Molina testified that she has no present concerns about David or Lisa as parents or about their care of K.F.

¶12. Finally, the chancellor noted that Monk had requested visitation in the alternative to guardianship or custody. However, the chancellor held that under Mississippi law an aunt has no right to visitation. The chancellor further stated that all other requests for relief not specifically addressed in his opinion were denied. Monk filed a notice of appeal.

¶13. On appeal, Monk argues that the chancellor erred (1) by not appointing a GAL despite Monk's allegations of abuse and neglect and (2) by not awarding Monk visitation under the doctrine of in loco parentis.

ANALYSIS

I. The chancellor did not abuse his discretion by not appointing a GAL.

¶14. "In child-custody cases where [allegations of] abuse and/or neglect are raised, the chancellor's decision to appoint a guardian ad litem may be mandatory or discretionary." Carter v. Carter , 204 So. 3d 747, 758-59 (¶50) (Miss. 2016). "The appointment is mandatory where the allegations of abuse and/or neglect rise to the level of a ‘charge of abuse and/or neglect,’ and in those cases ‘the court shall appoint a guardian ad litem for the child as provided under [ Mississippi Code Annotated section] 43-21-121, who shall be an attorney.’ " Id. at 759 (¶50) (quoting Miss. Code Ann. § 93-5-23 (Rev. 2013)). "In these situations the chancellor is required to appoint a guardian ad litem, whether the parties requested a guardian ad litem or not." Id. ¶15. "However, under Mississippi Code Section 93-5-23, the chancellor is provided discretion to determine if issues of abuse or neglect have sufficient factual basis to support the appointment of a guardian ad litem." Id. at (¶51). The statute gives "the chancellor some discretion in determining whether there is a legitimate issue of neglect or abuse even in those situations where one party elects to make such an assertion in the pleadings." Id. (quoting Johnson v. Johnson , 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004) ). The chancellor is not required to "appoint[ ] ... a guardian ad litem based merely on an unsubstantiated assertion found in the pleadings of one of the parties." Id. at (¶52) (quoting Johnson , 872 So. 2d at 94 (¶8) ).

¶16. This Court recently summarized:

[T]he appointment of a GAL is mandatory only if there is a "sufficient factual basis to support" an allegation of abuse or neglect. The chancery court has "discretion" to determine whether such an allegation is "legitimate." If the court concludes that there is no factual basis for the allegation, then the appointment of a GAL is not mandatory.

Brown v. Hewlett , 281 So. 3d 189, 197 (¶30) (Miss. Ct. App. 2019) (citations omitted) (quoting Carter , 204 So. 3d at 759 (¶¶51, 53 )).

¶17. On appeal, Monk argues that the chancellor erred by not granting her motion to appoint a GAL based on her allegations of abuse and neglect. The Fountains initially respond that Monk waived this issue because she never set her motion for a hearing or otherwise raised the issue at any point during the trial. While Monk's failure to obtain a ruling on her motion would constitute a waiver in most circumstances,³ it does not in this case. The mandatory appointment of a GAL in cases of abuse or neglect is to protect the child, not the parties. Therefore, if there is a "sufficient factual basis to support" a "legitimate" claim of abuse or neglect, "the chancellor is required to appoint a guardian ad litem, whether the parties requested a guardian ad litem or not ." Carter , 204 So. 3d at 759 (¶¶50-51) (emphasis added). Therefore, we will address this issue despite Monk's failure to pursue her motion in the trial court.

¶18. Prior to trial, Monk did not produce any evidence to support her allegations of abuse or neglect. Near the end of the first day of trial, the chancellor warned Monk: "So far I haven't heard anything about [the Fountains’ alleged] unfitness towards [K.F.]. We have been here about six and a half hours." The chancellor further observed that Monk's custody...