Patrick v. Boyd
| Decision Date | 05 April 2016 |
| Docket Number | No. 2014–CA–01266–COA.,2014–CA–01266–COA. |
| Citation | 198 So.3d 436 |
| Parties | Deanna Kaye PATRICK f/k/a Deanna Kaye Raines, Appellant v. James Dewey BOYD and Brittany Paige Raines, Appellees. |
| Court | Mississippi Court of Appeals |
Byron Russell Mobley, attorney for appellant.
Kirkland Caldwell Willingham, Batesville, attorney for appellees.
EN BANC.
WILSON
, J., for the Court:
¶ 1. Brittany Raines and James Boyd had a son, Hayden, when they were only sixteen years old. In July 2008, when Hayden was less than one year old, James was in the middle of a one-year prison term, and Brittany's life was so unstable that she voluntarily relinquished temporary custody of Hayden to her mother, Deanna Patrick. Thereafter, Brittany and James remained at least somewhat involved in Hayden's young life, but James's probation was revoked, which led to another year of incarceration, and Deanna's “temporary” custody of Hayden stretched into a fourth year. In April 2012, James was released from jail, he found steady employment and avoided criminal activity, and he and Brittany eventually moved into a house of their own and had a second child, a daughter. They have also maintained regular visitation with Hayden, and in June 2013 they filed a petition for custody of him. Deanna opposed the petition, believing that it was in Hayden's best interest to remain with her. Following a hearing in July 2014, the chancellor awarded custody to James and Brittany. Deanna appeals, but we find no reversible error and affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. Hayden was born on August 2, 2007. Brittany and James were sixteen years old at the time. James was present in the hospital room when Hayden was born, and he believed that Hayden was his son, although he was not identified as the father on Hayden's birth certificate, and he did not take a DNA test at the time. James testified that he did not submit to a DNA test because he was worried that it might show that he was not Hayden's father.
¶ 3. James was incarcerated for larceny from approximately April 2008 to April 2009. In July 2008, Brittany voluntarily relinquished temporary custody of Hayden to Deanna. An agreed order was entered granting Deanna temporary legal and physical custody. James was not made a party to the action. Deanna and Brittany both testified that Brittany's lifestyle was “unstable” at the time, so Deanna agreed to take temporary custody of Hayden until Brittany could improve her situation and care for Hayden.
¶ 4. From Hayden's birth until April 2012, Brittany lived with Deanna off and on. Brittany estimated that she lived with Deanna for approximately two years during that period. When Brittany lived with Deanna, she provided care for Hayden. When Brittany lived elsewhere, she lived nearby and visited Hayden, and Deanna acknowledged that there was never a period of time when Brittany was not involved in Hayden's life. In addition, Hayden visited regularly with James's grandparents, who raised James.
¶ 5. James was released on parole in April 2009, but his parole was revoked in April 2011 because he was found in the company of scrap iron thieves. He was incarcerated for another year and released around April 2012. He was then on house arrest for nine months and completed a term of parole.1
¶ 6. After James was released in April 2012, he and Brittany moved in together. Since April 2012, James appears to have maintained regular employment, primarily in the logging business. He also appears to have avoided criminal activity. In 2013, Brittany and James had a second child, a daughter, and moved into their own three-bedroom house. Although Brittany previously worked at Wal–Mart, she and James testified that James now earns enough for her to stay home with their daughter. Brittany testified that she would “rather be [taking care of their daughter] than be anywhere else,” and there was no evidence that she and James were unfit to parent and have custody of their daughter.
¶ 7. James testified that he and Brittany regularly spent time with Hayden between April 2012 and June 2013. James testified that, with Deanna's permission, they were with Hayden “all through the week” and “[a]ll through [the] summer.” According to James and Brittany, during this period they were trying to demonstrate to Deanna that they were ready and able to care for Hayden, and they repeatedly asked for custody of him. However, Deanna would not agree to them having custody of Hayden unless they met certain “conditions,” such as having a stable home and Brittany's completion of her GED. Brittany and James say that they satisfied Deanna's conditions.
¶ 8. In June 2013, James and Brittany filed a petition for custody of Hayden. According to James, they did so because he concluded that Deanna was not going to relinquish custody voluntarily. Over the next year, James and Brittany exercised court-ordered temporary visitation, first every other weekend and then three weekends a month.
¶ 9. Deanna claimed that James petitioned for custody only to avoid paying child support, an accusation that James denies. It appears that an order was entered in October 2011 establishing James's paternity and requiring him to pay child support for Hayden to the Department of Human Services (DHS). The order was based on a DNA test administered to James while he was incarcerated. As noted above, James remained incarcerated until April 2012. In June 2013, DHS apparently obtained an order requiring James to pay back child support. James testified that he subsequently paid $5,554 in back child support and continued to pay $180 per month.2
¶ 10. The court held a hearing on the custody petition in July 2014, when Hayden was almost seven years old. There was testimony that Hayden felt anxiety as a result of the custody proceeding, which is understandable, but in general the evidence indicated that he is a healthy and happy child. A licensed social worker hired by Deanna expressed some concerns about James and Brittany, the most serious of which seems to have been that, at one time, James and Brittany were not giving him his ADHD medication. James admitted that at first he did not give Hayden the drug (Focalin) because he did not think that Hayden needed it. James was concerned that six-year-old Hayden was not himself after taking the drug—as James put it, Hayden wanted to sit on the couch rather than go outside and play. Brittany and James also testified, however, that they now accept that a doctor prescribed the drug, and they require Hayden to take it. According to the social worker's notes, Hayden confirmed this. Deanna did not object to James and Brittany having visitation with Hayden, but she maintained that it was not in Hayden's best interest for them to have custody.
¶ 11. At the conclusion of the hearing, the chancellor granted custody of Hayden to James and Brittany. The chancellor emphasized that James had never voluntarily relinquished custody of Hayden, as he was not a party to the 2008 order granting custody to Deanna. The chancellor therefore reasoned that the hearing involved “an initial custody determination as to [James],” meaning that James was entitled to the benefit of the natural parent presumption. The chancellor found that James had not abandoned Hayden because he had remained “involved in [Hayden's] life,” and there was no showing that he was an unfit parent. Accordingly, the chancellor concluded that James was entitled to custody of Hayden.
¶ 12. The chancellor found that Brittany had voluntarily relinquished custody of Hayden based on the 2008 order granting custody to Deanna. However, the chancellor conducted an Albright analysis, see Albright v. Albright, 437 So.2d 1003 (Miss.1983)
, and determined that it would be in Hayden's best interest for Brittany to also have custody.
¶ 13. The court's order modifying custody also directed the Mississippi State Department of Health to change Hayden's surname to “Boyd” on his birth certificate, terminated James's child support obligations, and granted Deanna grandparent visitation of one weekend per month, two weeks during the summer, and one week at Christmas.
ANALYSIS
¶ 14. “A chancellor's custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith, 97 So.3d 43, 46 (¶ 7) (Miss.2012)
. “[T]his Court cannot reweigh the evidence and must defer to the chancellor's findings of the facts, so long as they are supported by substantial evidence.” Hall v. Hall, 134 So.3d 822, 828 (¶ 21) (Miss.Ct.App.2014).
¶ 15. On appeal, Deanna contends that the chancellor misapplied the law and manifestly erred by awarding custody to James and Brittany. Deanna also claims, in the alternative, that the chancellor should have granted her more extensive grandparent visitation. Finally, Deanna maintains that the chancellor lacked authority to terminate James's child support obligations or to order changes to Hayden's birth certificate.
¶ 16. Brittany and James did not file a brief on appeal. “Failure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of [the] appealing party, that there was no error.” Mosley v. Atterberry, 819 So.2d 1268, 1272 (¶ 17) (Miss.2002)
(quoting Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984) ) (alteration omitted). Id. (citing Muhammad v. Muhammad, 622 So.2d 1239, 1242 (Miss.1993)
).
¶ 17. Having reviewed the record, we conclude that the judgment should be affirmed despite James's and Brittany's failure to file a brief. Because James's claim for custody must be evaluated under a different legal standard than Brittany's claim, we address James's claim first. We then...
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