NE v. LH, 1998-CA-01242-COA.

• Citation: 761 So.2d 956
• Decision Date: 13 June 2000
• Docket Number: No. 1998-CA-01242-COA.,1998-CA-01242-COA.
• Parties: N.E. and R.H., Appellants, v. L. H., Jr., L.H. and L.T., Appellees.
• Court: Mississippi Court of Appeals

761 So.2d 956

N.E. and R.H., Appellants, v. L. H., Jr., L.H. and L.T., Appellees.

No. 1998-CA-01242-COA.

Court of Appeals of Mississippi.

June 13, 2000.

Mildred J. Lesure, Sandra Jaribu Hill, Attorneys for Appellants.

Helen Kennedy Robinson, Attorney for Appellees.

BEFORE SOUTHWICK, P.J., LEE, MOORE, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. This is a termination of parental rights and adoption case. N.E., the maternal grandmother, and R.H., the natural mother, appeal the decision of the Marshall County Chancery Court terminating the parental rights of the natural mother, removing the minor child, L.E.H., from the legal custody of the maternal grandmother, and granting the appellees's, Mr. and Mrs. L.H., Jr., petition to adopt the minor child. On appeal, the maternal grandmother and natural mother raise the following assignments of error:

I. THE TRIAL COURT'S DECISION TO TERMINATE THE PARENTAL RIGHTS OF R.H. WAS NOT SUPPORTED BY EVIDENCE SUFFICIENT TO MEET THE REQUIRED STANDARD OF PROOF, WHICH IS CLEAR AND CONVINCING.

II. THE TRIAL COURT'S FINDING THAT R.H. HAD ABANDONED THE MINOR CHILD WAS NOT SUPPORTED BY THE EVIDENCE IN THIS CASE.

III. THE TRIAL COURT ERRED IN FINDING THAT THE BEST INTERESTS OF THE MINOR CHILD WAS TO BE ADOPTED BY R.H. AND L.H.

IV. THE TRIAL COURT ERRED IN FINDING R.H.'S "PERCEIVED DISABILITY" AS A FACTOR HE CONSIDERED IN TERMINATING THE PARENTAL RIGHTS OF R.H.

V. THE GUARDIAN AD LITEM FAILED IN HER DUTY TO INVESTIGATE AND DETERMINE WHAT WAS THE BEST INTEREST OF THE MINOR CHILD.

¶ 2. Finding reversible error, we reverse and render in part, and reverse and remand with instructions.

FACTS

¶ 3. L.E.H., the minor child and the subject of the proceedings, was born August 7, 1988, and was ten years of age at the time of the lower court's decree. At the time of his birth, L.E.H. and his mother, R.H., were living with the alleged father, L.T., in his sister's home. Shortly after the child's birth, the Department of Human Services removed the child from the care and custody of his mother on October 2, 1988 and placed him with the appellees, Mr. and Mrs. L.H., Jr., as temporary foster parents. At trial, the evidence presented as to why DHS removed the child from his mother in October of 1988 indicated "medical neglect." The DHS supervisor in charge of the child's case testified that "the mother was not meeting his medical needs and his appointments," and that the reasons for removal did not extend to any other kinds of neglect. Malnourishment was the principal concern. In contrast, the guardian ad litem testified, as indicated in her report, that the "medical reports" taken at the time of the child's birth state that the child was born prematurely and that both parents were drug abusers. However, DHS provided no testimony supportive of the assertion that the parents were drug abusers. Furthermore, the alleged father, when asked whether he had any personal knowledge, or otherwise, of drug abuse on the part of the mother, R.H., the alleged father stated that he did not. The alleged father joined the appellees in their petition for adoption and further voluntarily waived his parental rights to the minor child.

¶ 4. Following the placement of the minor child with the appellees in October of 1988, the minor child was removed from their custody after DHS was able to locate a suitable relative with which to place the child. On January 3, 1989, DHS placed the minor child with his maternal grandmother. DHS testimony revealed that as a departmental policy, placement of a child with a suitable relative was given priority over placing a child with a third party. However, if a suitable relative is not available, then placement with a suitable third party is then considered. This occurred shortly after the child was placed with his maternal grandmother on January 3, 1989. On February 2, 1989, the child was removed from the custody of his maternal grandmother and again placed in the care of the appellees after it was revealed that the home in which the maternal grandmother lived had inadequate heating facilities and shelter. The child stayed with the appellees from February 2, 1989 until September 4, 1990, at which time it was deemed that the maternal grandmother's living conditions had substantially improved after she moved from the previously inadequate housing into the home of her mother, the child's maternal great-grandmother. The child resided with his maternal grandmother from September 4, 1990 until June 16, 1998, when at such time the child was again placed with the appellees, following the lower court's decree terminating the natural mother's parental rights and award of adoption.

¶ 5. The appellees continued to maintain a relationship with the child between September 4, 1990 and the year 1997. During this time the appellees visited with the child on a routine basis at the home of his maternal great-grandmother, provided him with personal items, and even took him on some overnight trips.

¶ 6. In terminating the natural mother's parental rights and removing the previously awarded legal custody of the maternal grandmother in favor of the petition for adoption by the appellees, the chancellor made, in part, the following conclusions in the final decree of adoption:

The minor child was taken from the mother by the Marshall County Department of Human Services in 1988 because she was not meeting the child's medical needs. The mother would not enter into a service agreement with the department; she is still unstable; she has abandoned the minor child; she has not supported the minor child and has shown no regard for his welfare; and she is mentally unable to care for the child. The facts reveal that [R.H's] parental rights should be terminated. Custody of the minor child was placed with [N.E.], the maternal grandmother. The grandmother is not mentally able to care for the child and the best interest of the minor child will be served by a change in his current status.

¶ 7. From this decree the child's mother and his maternal grandmother appeal to this Court. We now turn to our familiar standard of review and the issues presented.

ANALYSIS

¶ 8. We begin by restating our well established standard of review employed in addressing matters such as are present in the case before us. "The 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)). Under this standard, we accord wide latitude and discretion to our chancellors and their courts because of the benefits present from having heard the testimony and evidence while observing the witnesses and their demeanor. Ainsworth v. Natural Father, 414 So.2d 417, 420 (Miss.1982). However, of equal importance in our application of this standard is our duty to abide by the following, that being "where on review it is apparent the court below has misapprehended the controlling rules of law or has acted pursuant to a substantially erroneous view of the law, we will proceed de novo and promptly reverse." Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992).

¶ 9. At issue in this case are two equally important aspects of family law, the termination of a parent's parental rights and the grant of a petition for adoption. While it is well settled that a parent's right to raise his/her children is of a fundamental nature, and is entitled to great protection, those rights may nevertheless be terminated when the welfare of the children is threatened. Vance, 582 So.2d at 417; Miss.Code Ann. §§ 93-15-103, 93-17-7 (Rev.1994). On the other hand, "[t]he right to adopt a child or children did not exist at common law and was first conferred by statute in this State under section 525, Code of 1871...." Mayfield v. Braund, 217 Miss. 514, 64 So.2d 713, 714-15 (1953). The original statutory scheme has naturally evolved into our present code, and reasonably so, our supreme court has "construe[d] the adoption statutes as conferring a privilege rather than a right of adoption." Martin v. Putnam, 427 So.2d 1373, 1377 (Miss. 1983); Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 364 (1951).

¶ 10. When resolving such matters we are mindful of the rationale used in Mayfield. While we recognize that the statutory scheme for the adoption of children and the termination of a parent's parental rights has evolved in greater specificity from that which was present in Mayfield, we nevertheless find solitude in our Supreme Court's reasoning when addressing these matters:

Thus it will be seen that the Legislature of this State in providing the statutory method for the adoption of a child or children has not empowered any court to adopt unto others a child or children where the parent `shall appear and object thereto before the making of a decree of adoption', unless it shall be made to appear, from evidence touching such matters, that (1) the parent so objecting has abandoned or deserted such child or children, or (2) is mentally or morally unfit to rear and train the same, but that `in either of which cases the adoption may be decreed notwithstanding the objection of such parent,' provided, of course, as stated in the statute, the welfare of the child or children sought to be adopted would be best served by allowing the petitioners then before the court to do so. It is therefore made clear that the court does not reach the issue of what is to the best welfare of the child or children sought to be adopted until it shall first appear from the evidence that the parent so objecting has abandoned or deserted the child or children, or is mentally or morally unfit to rear and train it or them, when the contest is between a natural parent and third persons.

Mayfield, 64 So.2d at 715-16.

¶ 11. In termination of parental rights cases, the petitioner must...