Natural Mother v. Paternal Aunt, 90-CA-0357

• Citation: 583 So.2d 614
• Decision Date: 19 June 1991
• Docket Number: No. 90-CA-0357,90-CA-0357
• Parties: NATURAL MOTHER v. PATERNAL AUNT.
• Court: United States State Supreme Court of Mississippi

Page 614

583 So.2d 614

NATURAL MOTHER v. PATERNAL AUNT.

No. 90-CA-0357.

Supreme Court of Mississippi.

June 19, 1991.

Robert G. Gilder, Southaven, for appellant.

Percy L. Lynchard, Jr., Hernando, for appellee.

Before DAN M. LEE, P.J., and PRATHER and BANKS, JJ.

BANKS, Justice, for the Court:

Natural mother, designated herein as S.J., appeals from a decree entered by the Chancery Court of DeSoto County, Chancellor Leon E. Hannaford, Sr., terminating her parental rights. The paternal aunt of the children, designated herein as C.H., involved in this action, filed a petition for adoption in the chancery court. The natural father, designated herein as J.M., consented to adoption of the children by his sister. S.J., the children's natural mother contested the petition for adoption. She filed an answer in which she denied the material allegations of and objected to the granting of the petition. Several months later, immediately preceding trial, S.J. filed a writ of habeas corpus in which she sought custody of the children. She now appeals from the final decree granting the petition for adoption and terminating her parental rights. Finding that the chancellor committed no error, we affirm ¹.

Facts

The pertinent facts are, for the most part, uncontroverted. In 1978, S.J. met and began to date J.M., contrary to her mother's wishes. At the time, S.J. was fourteen (14) and J.M., nineteen (19). Testimony at trial revealed that prior to dating J.M., S.J. was an average teenager. While dating J.M., she became quite rebellious and at age sixteen (16) gave birth to a child born April 11, 1982. Shortly after the birth of the infant, J.M. was convicted for drug distribution in Mississippi and Tennessee. He served time in penal institutions in both states. Upon his release from prison, S.J. became pregnant with their second child, who was born May 15, 1985.

In January 1986, S.J. sought treatment for drug addiction. Apparently, while dating J.M., S.J. began using and abusing drugs. Her addiction became so serious that she sought professional help and, with the aid of her mother, she was admitted to Memphis House for rehabilitation and treatment. She remained there four months.

Prior to her admission into the rehabilitation clinic, S.J. left the children, then aged three (3) years and six (6) months with J.M. At trial, she admitted that at the time she left the children with their father, she knew he was a convicted felon, had a drug problem, and was living with a woman, out of wedlock. Immediately upon receiving the children, J.M. took them to his sister, C.H., who has had them since January 1986.

In March of 1986, C.H. petitioned the juvenile court of Shelby County, Tennessee, for custody of the children. Service of process was attempted on S.J. approximately three times but was never obtained because she was at Memphis House unbeknownst to C.H. or the process server. S.J., however, was informed by one of the counselors at the rehabilitation center that C.H. was attempting to obtain custody. At trial, she stated that she chose not to contest the proceedings because her step-father, a former justice court judge, told her that custody could not be granted without her consent or presence at the hearing. Contrary to her step-father's pronouncement the juvenile court granted custody of the children to C.H. on May 6, 1986.

S.J. was released from Memphis House in July of 1986. After her release, she contacted C.H. and sought to see the children. C.H. consented to a visit between the children and S.J. at her (C.H.'s) mother's house. S.J. found the visit upsetting, as the children had bonded with C.H., considering her their "mamma." She also thought C.H. was hostile toward her.

In September of 1986, natural mother left the Memphis area and relocated to Georgia. When she left, she did not notify anyone of her whereabouts. She even refused to give her mother an address and phone number where she could be reached. After moving to Georgia, she saw the children once more at Christmas in 1989 ². Both C.H. and S.J. testified that, from July of 1986 to Christmas 1989, there was no communication from S.J. to the children. S.J. stated that she made efforts to reach the children through phone calls to C.H. in August and September of 1986 and sometime in 1987; she, however, was unsure of the dates. By all accounts, at the time of the trial, S.J. had only seen the children twice since she left them in January 1986. ³

In May of 1989, C.H. filed a petition for adoption in the Chancery Court of DeSoto County ⁴. Pursuant to an agreed order entered on September 29, 1989, trial was set for January 18, 1990. On January 16, 1990, two days before trial, S.J. filed a petition for writ of habeas corpus or in the alternative, modification of custody decree. In the writ, she alleged that since C.H. was awarded custody of the children without personal service of process upon her, the order of the Tennessee court was void. The trial court refused to hear the petition for writ of habeas corpus. Trial ensued. At the trial, the chancellor entered an order appointing a guardian ad litem for and on behalf of the minor children. Testimony was heard from witnesses called by both parties. At the conclusion of the trial, the court granted the petition for adoption. Aggrieved by the chancellor's decision, S.J. brings this appeal.

II

S.J. argues that the trial court's refusal to hear the writ violates both the federal and state constitutions, as well as long-standing case law. C.H. contends that the court was correct in its refusal to hear the petition. She states that the petition requesting the writ of habeas corpus was filed under the same cause number as the petition for adoption, thus it can only be construed as an amendment to the original answer filed by S.J. As such, it is to be considered with reference to our rules of civil procedure which apply to these proceedings except to the extent that they are expressly contrary to the statutory scheme governing the subject matter. Miss.R.Civ.P. 81.

Miss.R.Civ.P. 15(a) provides inter alia that after a responsive pleading or the passage of thirty days following service of a pleading to which no responsive pleading is permitted "a party may amend his pleading only by leave of court or upon written consent of the adverse party; leave should be freely given when justice so requires." The matter of amendments to pleadings lies within the discretion of the lower court, Bourn v. Tomlinson Interest, Inc., 456 So.2d 747, 749 (Miss.1984); Red Enterprises, Inc. v. Peashooter, Inc., 455 So.2d 793 795 (Miss.1984), and "an application to amend should be prompt and not the result of an inexcusable want of diligence." William Iselin & Co., Inc. v. Delta Auction, 433 So.2d 911 (1983) quoting Osborne v. Vince, 240 Miss. 807, 129 So.2d 345 (1961). Although William Iselin & Co., Inc. relied on Miss.Code Ann. Sec. 11-5-53 which has been supplanted by Miss.R.Civ.P. 15, the principle embodied in the rule is the same as the statute. See also, Red Enterprises, Inc. v. Peashooter, Inc., 455 So.2d at 795 (intimating that leave to amend should not be granted where there exists undue delay, bad faith, or dilatory motive on the part of the movant). The Court in William Iselin & Co., Inc. also stated,

Moreover, amendments which are permitted in the latter stages of litigation may deny the important policy favoring finality of judgments and the expeditious termination of litigation. Thus, liberality in permitting amendments is not allowed to encourage delay, laches and negligence. Griffith, Mississippi Chancery Practice Sec. 392 (2d ed. 1950).

Additionally, an amended pleading may unfairly prejudice the adverse party. See Saxon v. Harvey, 190 So.2d 901 (Miss.1966) (amendment should have been permitted where it would not have resulted in surprise or injustice)

William Iselin & Co., Inc., 433 So.2d at 913.

The William Iselin & Co., Inc. Court gave as an example a situation where the adverse party in addition to being burdened with more discovery, preparation, and expense, may have little time to investigate and acquaint itself with the new matter in the amended pleadings if an amendment were allowed. This would have been the scenario in the instant case if the trial court had heard the petition requesting the writ. S.J. sought to amend her pleading a mere two days before trial to put the issue of the legality of the Tennessee custody order before the court. Clearly, the grant of the petition would have prejudiced C.H. who at this juncture was poised and ready for trial on the petition for adoption and was unaware of any other issues against which she would have to defend.

This Court has consistently affirmed a chancellor's denial of an amendment where the party requesting the amendment has not exercised due diligence in filing the application to amend. Cf. Rolkosky v. Rolkosky, 237 Miss. 89, 113 So.2d 661 (1959) (chancellor committed no error in denying amendment where motion was filed after the cause was submitted and the chancellor announced decision), Olivari v. Clark, 175 Miss. 883, 168 So. 465 (1936) (chancellor's refusal to allow an amendment was not error where the lower court had indicated its final decision on the case), Duggan v. Champlin, 75 Miss. 441, 23 So. 179 (1898) (request for amendment was too late as it was made after the presentation of evidence and during the arguments). Other courts have held that it was not an abuse of discretion for a trial judge to deny leave to amend immediately before trial. See Woodson v. Fulton, 614 F.2d 940, 942 (4th Cir.1980); accord, Feldman v. Allegheny Intern, Inc., 850 F.2d 1217 (7th Cir.1988) (district court did not abuse its discretion in denying request for leave to amend pleadings where proposed amendment was made three weeks before trial and over four years after litigation began).

Moreover, the issue of whether C.H. properly had custody was one which would be moot if the...