Neely v. Welch

• Decision Date: 10 November 2015
• Docket Number: No. 2014–CA–01022–COA.,2014–CA–01022–COA.
• Citation: 194 So.3d 149
• Parties: Roger Lynn NEELY, Appellant v. Kaleb Matthew WELCH, Appellee.
• Court: Mississippi Court of Appeals

194 So.3d 149

Roger Lynn NEELY, Appellant

v.Kaleb Matthew WELCH, Appellee.

No. 2014–CA–01022–COA.

Court of Appeals of Mississippi.

Nov. 10, 2015.

Rehearing Denied April 19, 2016.

Certiorari Denied June 30, 2016.

Renee M. Porter, attorney for appellant.

Wesla Ann Sullivan Leech, Aleita M. Sullivan, Mendenhall, attorneys for appellee.

Before IRVING, P.J., ISHEE and WILSON, JJ.

WILSON

, J., for the Court:

¶ 1. The facts of this case are undeniably tragic. In August 2012, Holly Jennings Neely passed away at the age of twenty as a result of complications from childbirth.

Her newborn son also died. Holly was survived by her daughter, Riley Grace Neely, who was then not quite two years old, and her husband, Roger Neely, who was Riley's stepfather. A contentious custody dispute ensued between Roger and Riley's biological father, Kaleb Welch. The chancellor observed that both men, as well as their families, clearly loved Riley very much. Ultimately, the chancellor granted Kaleb physical and legal custody and granted specified visitation to Riley's maternal grandparents. Roger was awarded neither custody nor visitation. While the facts of this case are heartbreaking, the law that governs them—in particular the natural parent presumption—is clear, and the chancellor applied it correctly. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 28, 2010, Holly Jennings Neely gave birth to a daughter, Riley Grace. Holly and her husband, Roger Neely, had been married less than three weeks when Riley was born, and both Holly and Roger knew that he was not Riley's biological father. Riley's biological father is Kaleb Welch, with whom Holly had a prior relationship. Nonetheless, Riley's birth certificate listed Roger as the father and gave her the surname Neely.

¶ 3. Six months after Riley's birth, Kaleb filed a petition for a determination of paternity and custody. Kaleb's petition alleged that Holly had represented to him that he was Riley's biological father. Kaleb's petition sought genetic testing and, if he was shown to be the father, joint custody. Kaleb's petition also confirmed that he would pay child support if shown to be Riley's father.

¶ 4. Holly's answer admitted that she had represented to Kaleb that he was Riley's father. Holly also admitted that if genetic testing confirmed her representation, Kaleb would be entitled to “joint legal custody and ... standard visitation rights,” but Holly asked that “she be granted primary physical custody of [Riley].”¹ Holly also agreed that Kaleb should be required to pay child support.

¶ 5. Testing confirmed that Kaleb is Riley's biological father, and on November 11, 2011, the chancellor signed an agreed order establishing paternity, custody, and child support. Under the terms of the order, Riley's birth certificate was amended to identify Kaleb as her biological father, but her surname remained Neely. Kaleb and Holly were granted joint legal custody, Holly was granted physical custody, and Kaleb was granted essentially “liberal” visitation,² structured to coincide with his offshore work schedule. Kaleb was also required to pay child support to Holly, including back child support since the date of Riley's birth. Holly and Kaleb both signed the agreed order.

¶ 6. On August 6, 2012, Holly passed away as a result of complications from childbirth.³ On August 24, Kaleb filed a petition seeking a modification of custody and support, in which he stated that Riley had been in his physical custody since Holly's death. Roger subsequently filed a complaint for emergency custody and other relief and a motion to intervene and response to Kaleb's petition. Roger alleged that granting him physical custody was in Riley's best interest, that he stood in loco parentis, and that Kaleb had deserted Riley. In October, the chancellor signed a temporary order directing that physical custody of Riley would alternate between Kaleb and Roger on a two-week basis to coincide with Kaleb's offshore work schedule. The order stated that all other provisions of the November 2011 order establishing paternity, custody, and support would remain in effect.

¶ 7. The chancellor appointed a guardian ad litem (GAL) to investigate, to make recommendations to the court, and to act in all respects to protect Riley's best interest. The GAL's report was filed with the court prior to the hearing on permanent custody of Riley. The chancellor informed the parties that he would depend on the report in making his ruling, to which neither party objected.

¶ 8. The GAL visited with Kaleb and his wife, Kayla, at their home. She observed that Riley appeared to have a good relationship with Kaleb and Kayla and played well and seemed to have bonded with her younger half-sister, Kaylan, whom she called “sissy.” The GAL noted that Riley was talkative and playful and crawled into Kaleb's lap and called him “daddy.” During the GAL's visit, Kaleb's dad drove up, and Riley was happy to see him and climbed up in his truck with him. Kaleb told the GAL that Riley had returned from visits with Roger with diaper rashes, bruises, and other minor injuries.

¶ 9. The GAL also visited Roger at the home of Holly's parents, Mike and Gayle Jennings, with whom Roger was then living. Roger and the Jennings denied Kaleb's claims that he had returned Riley to Kaleb with diaper rash or injuries. They alleged that it was the other way around—that Kaleb returned Riley to Roger with diaper rashes, infections, and minor injuries. Roger also claimed that Riley cried and resisted leaving him to go with Kaleb but would “lunge” out of Kaleb's or Kayla's arms to come back to him.

¶ 10. The GAL also met with other family members: Kaleb's parents and stepmother, Kayla's parents, Kaleb's brother, and Roger's mother and stepfather. Their statements to the GAL lined up with either Kaleb's/Kayla's or Roger's: Kaleb's and Kayla's families believed Kaleb and Kayla were good and loving parents, while suggesting that Roger was neglectful if not abusive, and Roger's family believed exactly the opposite was true.⁴ The GAL concluded that Kaleb, Kayla, Roger, the Jennings, and the rest of their families all loved and cared for Riley, and she found no clear evidence of abuse by anyone. She noted that although Riley had seen doctors and nurse practitioners regularly, and Mike Jennings even called DHS at one point (because Riley came home with a splinter in her foot), there was no evidence that any healthcare provider or other qualified professional ever suspected abuse.

¶ 11. In the conclusion of her report to the court, the GAL reiterated that it was clear that both Kaleb and Roger loved Riley very much. The GAL also stated that she did not believe that it would be in Riley's best interest for either Roger or the Jennings to be completely out of Riley's life. However, she also concluded that Kaleb had neither abandoned nor deserted Riley, that there was no evidence that Kaleb was an unfit parent, and that Roger did not meet the legal standard for in loco parentis. Based on these conclusions, the GAL recommended that Kaleb be granted sole legal and physical custody and that Riley's surname be changed to Welch.

¶ 12. A hearing was held on the issue of permanent custody of Riley on April 11, 2013. At the outset of the hearing, the chancellor made clear that the purpose of the hearing was to address the threshold issue whether Roger could make a clear showing of one of the limited grounds for overcoming the natural parent presumption, i.e., abandonment, immoral behavior detrimental to the child, or parental unfitness. Roger's attorney agreed that was Roger's burden and the issue before the court, and she then proceeded to present his case.

¶ 13. Roger testified and called his mother, his stepfather, and the Jennings as witnesses. Their testimony at the hearing can be summarized as generally consistent with their prior statements to the GAL. They believed that Roger was a good and loving father and should have custody. They believed that Kaleb had abandoned or deserted Riley because he was not there when she was born and during the first six months to one year of her life. And they believed that Kaleb and Kayla were uncaring, unfit, neglectful, or even abusive parents. However, consistent with the GAL's conclusions, no clear evidence of abuse or unfitness was presented—only accusations of inattentiveness, rudeness, or bad language, together with reports of rashes or minor injuries. After Roger rested, Kaleb moved to dismiss Roger's complaint for custody on the ground that Roger had failed to present evidence sufficient to overcome the natural parent presumption.

¶ 14. The chancellor then called the families back into the courtroom to deliver and explain his ruling. He explained—as he had at the outset of the hearing—that to rebut the natural parent presumption, Roger needed to present clear and convincing evidence that Kaleb had abandoned or deserted Riley, that Kaleb's behavior was so immoral as to be harmful to Riley, or that Kaleb was an unfit parent. The chancellor found that Roger failed to meet this burden. He found that Kaleb's petition for custody only six months after Riley was born and his subsequent financial support and involvement in her life defeated any claim of abandonment or desertion. He also found that there was no evidence of abuse or unfitness but only reports of minor injuries or rashes of the kind that “happen with all children.” Accordingly, he found “no evidence that Kaleb Welch is guilty of anything that would overcome the legal presumption that the best interest of the child requires the child to be in the custody of the surviving natural parent.” The chancellor told the families that it was clear that they all loved Riley and that he felt for all of them, especially Roger. However, as the natural parent, Kaleb was entitled to custody.

¶ 15. The chancellor suggested that, unless an agreement could be worked out, Roger and the Jennings could petition for...