Of v. Jackson Cnty. Dep't of Human Servs., 2013-CA-02047-COA.

• Citation: 225 So.3d 1220
• Decision Date: 19 January 2016
• Docket Number: No. 2013-CA-02047-COA.,2013-CA-02047-COA.
• Parties: In the Interest of B.A.H. and K.M.B., Minors: Becky Hall, Appellant v. Jackson County Department of Human Services, Appellee.
• Court: Court of Appeals of Mississippi

225 So.3d 1220

In the Interest of B.A.H. and K.M.B., Minors: Becky Hall¹ , Appellant

v.Jackson County Department of Human Services, Appellee.

No. 2013-CA-02047-COA.

Court of Appeals of Mississippi.

Jan. 19, 2016.

William Harvey Barton, attorney for appellant.

Tonya Michelle Blair, William Melvin Rosamond, Jackson, attorneys for appellee.

Before GRIFFIS, P.J., CARLTON and WILSON, JJ.

WILSON, J., for the Court:

¶ 1. Becky Hall appeals from a judgment terminating her parental rights to two of her children. The children were placed in the custody of the Jackson County Department of Human Services (DHS) when they were only six weeks old and twenty-two months old after Hall was arrested on drug charges. At the time, Hall was living in an apartment with the two children and her boyfriend, Clyde Brown, who is the father of the younger child. Brown had been cooking methamphetamine (meth) in the apartment—so much meth, in fact, that it contaminated the apartment and three surrounding units. Hall subsequently entered into a pretrial diversion program. She completed a drug treatment program, has refrained from using drugs, and has maintained a stable residence and a steady job. But she also continued to live with and maintain a relationship with Brown, who continued to use drugs and engage in criminal activity. Hall did so despite warnings from DHS and others that her cohabitation and relationship with Brown would prevent her from regaining custody of her children. In the meantime, the two small children bonded with foster families that love them and want to adopt them. After hearing testimony from numerous witnesses, the Jackson County Youth Court found that termination of Hall's parental rights was in the children's best interests and that grounds for termination had been proven by clear and convincing evidence. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

I. Children Taken Into DHS Custody

¶ 2. In August 2009, Becky Hall was living in an apartment in Gautier with her boyfriend Clyde Brown and her three minor children, Kate Brown (K.M.B.), Ben Howard (B.A.H.), and Hank Hall. Kate was less than six weeks old at the time. Brown is her father.² Ben was twenty-two months old. His father, Billy Howard, was then incarcerated for possession of drugs and stolen property. Hank was six years old. Hank's father, Eric Davis, was also a convicted felon, and a third party had been named Hank's legal guardian.

¶ 3. Hall's apartment was fully subsidized by U.S. Department of Housing and Urban Development (i.e., free to Hall) and thus was subject to certain restrictions. For example, unapproved residents and convicted felons were not allowed to live in the apartment, and there was a zero-tolerance policy regarding drugs. Hall was in violation of these rules because Brown was not an approved resident and had multiple prior felony convictions. Also, he was cooking a tremendous amount of meth in the apartment.

¶ 4. Other residents of the apartment building complained to the manager that Hall's apartment was emitting a foul odor. The manager notified residents that all units in the building would be searched to determine the source of the odor. The manager also notified law enforcement of her suspicion that the odor was related to drugs. Before law enforcement took any action, an officer with the City of Gautier Police Department personally warned Hall that he had information that Brown was cooking meth in the apartment and that she could lose her children and her apartment if she did not put a stop to it. This occurred in late August or early September of 2009.

¶ 5. Despite this warning, on September 10, 2009, Hall was arrested at her apartment complex after chemicals used to manufacture meth were found in her car. She told police that she had purchased the items for someone else, but she refused to identify the person. She was charged with possession of precursors, but proceedings in her criminal case were later stayed after she entered into a pretrial diversion agreement and program. As a result of her arrest, Hall was evicted from her apartment.

¶ 6. Brown had cooked so much meth in the apartment that it and three other nearby units were contaminated. The residents of those units had to move out and lost their furniture and personal possessions, which were also contaminated. The owner of the complex had to "gut [Hall's apartment] to the studs" because of the contamination, and at least two of the affected units are still uninhabitable because decontamination was deemed too expensive.

¶ 7. Because of Hall's arrest and the dangerous conditions inside her apartment, the youth court removed Ben and Kate from her custody and placed them in the custody of DHS. DHS placed Ben with his paternal aunt and uncle (his father's brother and sister-in-law), Melvin and Kimberly Howard. DHS placed Kate with unrelated foster parents, Jerry and Tiffany Gordon. Hank was also removed from the home and placed in the custody of his legal guardian. His custody is not at issue in this case.

II. Reunification Efforts and Proceedings in the Youth Court

¶ 8. In February 2010, Hall entered into a service agreement with DHS with the goal of reunification with her children. See Miss.Code Ann. § 43–15–13(4) (Rev.2015). The agreement required her to complete drug treatment and parenting classes, submit to random drug testing, and maintain a safe and drug-free home.

¶ 9. In March 2010, the youth court held a permanency review hearing for Ben and Kate. A parent whose child has been placed in foster care has a maximum of six months to complete a DHS service agreement unless DHS "has documented extraordinary and compelling reasons for extending the time period in the best interest of the child."Id. For children under the age of three, the law also requires DHS to initiate proceedings to terminate parental rights (TPR) unless it "has documented compelling and extraordinary circumstances." Id. Because Hall had only recently entered into an inpatient drug treatment program, the youth court granted her an additional six months to complete her service agreement and scheduled the next permanency hearing for September 2010. In May 2010, Hall completed the inpatient drug treatment program and parenting classes.

¶ 10. On June 28, 2010, the youth court adjudicated Kate and Ben to be neglected children under the Youth Court Act. See id. § 43–21–561(3). The court's order required Hall to complete a service agreement with DHS, submit to random drug testing, and establish and maintain a safe and stable home and employment. The court also ordered Hall to complete an "after care" (drug counseling) program. The order permitted Hall to have supervised weekly visitation with the children at DHS's office.

¶ 11. The children's next permanency review hearing was held in September 2010. Hall, Brown, and Howard were all present. The report of the court-appointed guardian ad litem (GAL) reflects that at the time of this hearing, DHS and the GAL continued to support reunification efforts because it appeared that Hall and Brown were making progress. However, the court was concerned that Hall had submitted little proof or documentation of compliance with her service agreement and that Brown had not entered into a service agreement. The court took the case under advisement to review the case file and directed the parties to submit additional documentation. The court also ordered the parents to submit to drug tests, which Hall and Howard passed but Brown failed.

¶ 12. In December 2010, Hall entered into a second service agreement with DHS, which required her to attend drug counseling. The service agreement also reiterated her obligation to maintain a drug-free environment, which specifically included "staying clear of people [who] do drugs."

¶ 13. Documentation submitted to the court after the September 2010 hearing showed that Hall did attend some counseling sessions but not until December 2010, months after she had completed her residential treatment program and was supposed to have started an after care program. In addition, the director of a Christian twelve-step program advised the court by letter that Hall had attended some meetings but had "missed a lot of meetings" and seemed to be "using the program."³ Finally, subsequent to the September 2010 hearing, Brown failed to follow through with the drug treatment program that his service agreement required and again tested positive for drugs. The DHS family protection specialist assigned to the case warned Hall that because Brown continued to use drugs and failed to comply with his service agreement, her continued relationship with him would be an obstacle to reunification. The DHS caseworker explained to Hall that it was important to separate herself from Brown. Nonetheless, Hall continued to live with Brown.

¶ 14. On January 20, 2011, the court entered orders finding that reunification was no longer in the children's best interest despite DHS's reasonable efforts to reunify the children with their parents. The court specifically found that the parents remained unable to provide a safe, stable, and drug- and violence-free environment for the children. The court therefore ordered that the children should remain in DHS custody and in their current placements. The court further found that it was in the children's best interests to change their permanency plans from reunification to TPR and adoption and that all visitation between the children and their biological parents should cease.

¶ 15. For reasons that are not apparent from the record in this appeal, sixteen months passed before a TPR petition was filed on May 24, 2012.⁴ A summons to Hall was issued on August 6, 2012, and she waived service on August 9, 2012.⁵ The next week, Hall filed an answer to the petition and a motion to recuse the youth court judge. Hall alleged that recusal was required because the judge had ordered the children's permanency plan changed from reunification to TPR and...