A.S.E.L. v. M.J.W.

• Decision Date: 02 April 2013
• Docket Number: No. 2011–CA–01438–COA.,2011–CA–01438–COA.
• Citation: 111 So.3d 1243
• Parties: In the Matter of the ADOPTION OF a Minor Child, A.S.E.L. V.S.P., Appellant v. M.J.W. and M.S.L., Appellees.
• Court: Mississippi Court of Appeals

111 So.3d 1243

In the Matter of the ADOPTION OF a Minor Child, A.S.E.L.

V.S.P., Appellant

v.M.J.W. and M.S.L., Appellees.

No. 2011–CA–01438–COA.

Court of Appeals of Mississippi.

April 2, 2013.

Matthew Shepherd Poole, Jackson, attorney for appellant.

Robert M. Logan, Jr., Newton, attorney for appellees.

Before LEE, C.J., BARNES and FAIR, JJ.

BARNES, J., for the Court:

¶ 1. This appeal stems from a Newton County Chancery Court judgment where Vincent S. Parker's ¹ amended petition to set aside the adoption of his natural son, Andy, by Melanie J. Watkins and Mark S. Lewis, was dismissed with prejudice. On appeal, Parker argues that he cannot have his parental rights terminated, as he was never made a party to the adoption proceeding and did not receive notice,² and that the chancellor erred in dismissing the case under Mississippi Rule of Civil Procedure 60(b) and Mississippi Code Annotated section 93–17–6 (Supp.2012).³ While it is undisputed that Parker did not receive formal notice of the adoption (and should have), this fact does not mean that the adoption is void, as Parker contends. Even if Parker had received notice, he did not meet the standard of demonstrating “a full commitment to the responsibilities of parenthood” under section 93–17–5(3), which would have allowed him, as an unwed father, to object to the adoption. Accordingly, we find no reversible error, and affirm the adoption of Andy and the termination of Parker's parental rights.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Dana Foster and Parker conceived a child, Andy, who was born out of wedlock on May 25, 2004. At the time, Dana was seventeen years old and Parker was nineteen years old. The couple never married, and Parker was not listed as the father on the birth certificate at the hospital. The certificate was never amended. During her pregnancy, Dana lived with Parker at his mother and step-father's mobile home in Brandon, Mississippi. Dana was unemployed, and Parker did seasonal work. Approximately six weeks after Andy's birth, Dana moved out of the residence because she and Parker were not getting along. She also suspected Parker was using drugs. Apparently, Dana did not keep in touch with Parker after she left.

¶ 3. Dana moved to her father's mobile home in Richland, Mississippi, where she lived for about a week. Then, Dana and Andy moved in with Mark Lewis, Dana's brother (Andy's natural uncle), and Melanie Watkins, his wife, in Newton County, Mississippi, for approximately one month. After a “little fuss,” Dana moved back to her father's residence.

¶ 4. Soon after, in August 2004, Melanie notified the Mississippi Department of Human Services (MDHS), alleging Andy was living in “deplorable conditions” at the mobile home of Dana's father. The Rankin County Youth Court appointed a guardian ad litem (guardian) on behalf of Andy. Dana told MDHS investigators that she wanted to give custody of Andy to Susie and Joe Kirk, friends of Dana's family and godparents to Andy. The Kirks were granted temporary custody, and in September 2004, MDHS concluded that there was no evidence of neglect by Dana. However, the youth court directed Dana to fulfill certain prerequisites before she would be eligible to have Andy returned to her.

¶ 5. In November 2004, Melanie and Mark requested the youth court change Andy's custody from the Kirks to them. Melanie testified the Kirks had no objection to this change; thus, after a “shelter hearing,” Melanie and Mark were awarded temporary custody.

¶ 6. In January 2005, Andy's first guardian recommended a petition for neglect against Dana be filed in the youth court, because she “has not made progress in improving her ability to care for this child. Dana is bouncing from house to house, wherever anyone will let her stay.” Additionally, the guardian reported Andy was “thriving” with Melanie and Mark. In March 2005, the youth court issued an order finding Andy neglected by Dana, and Andy remained in Melanie and Mark's custody.

¶ 7. Also in March 2005, Melanie, with Andy, met Parker at a Waffle House in Brandon, Mississippi, and told him of her intent to adopt Andy. Melanie testified that Parker told her he thought the adoption was in Andy's best interest—he did not “need to be a father” at the time, and did not want Dana to have custody.

¶ 8. In April 2005, Dana signed a consent to Andy's adoption by Melanie and Mark, and to the termination of her parental rights. On October 26, 2005, a petition for adoption by Melanie and Mark was filed in the Newton County Chancery Court; Parker was not made a party to the proceedings. At this time, Parker's paternity had not been established because he had thus far ignored the youth court's recommendations to have a DNA test performed. On December 16, 2005, the final decree of adoption was entered.

¶ 9. Nearly four years later, in September 2009, Dana filed a motion to set aside the adoption. Then, in late 2009, Dana approached Parker, asking him to file a petition to set aside the adoption. In May 2010, Parker filed such a petition, seeking custody of Andy, and Dana joined it. In the petition, Parker claimed Melanie and Mark committed fraud in bringing the adoption proceedings because they intentionally did not notify Parker. Also, he claimed Melanie and Mark conspired together, and coerced Dana into signing the adoption papers. Parker stated Melanie intentionally kept the child away from him and thwarted his efforts at paternity testing.

¶ 10. In December 2010, the chancellor dismissed Dana's petition as untimely under Mississippi Code Annotated section 93–17–15 (Rev.2004) because her petition was not filed within six months of the adoption, but Parker's petition remained on the docket. In January 2011, the chancellor ordered paternity testing, and Parker complied. The test confirmed Parker is Andy's biological father. Also, Parker filed an amended petition to set aside the adoption. In it, he stated that he received no service of process or notice of the adoption.

¶ 11. In April 2011, a guardian was appointed to represent Andy in the proceedings. The guardian filed a detailed report on all of the parties in July 2011. In his report, the guardian opined that while the adoption did not meet the minimum standards of due process, the fact that Parker had made no attempt to visit Andy from 2005 to 2010, even though he had telephone numbers and “with just a little effort” could have found Melanie, is “a cliff rather than a hill for Mr. Parker to climb” regarding termination of his parental rights. The guardian recommended that if parental rights were not terminated, Andy remain with Melanie and regular visitation start slowly with Parker, and he pay child support to Melanie.

¶ 12. In July 2011, a hearing was held on Parker's petition to set aside the adoption. Melanie testified that she did not serve Parker the adoption petition or obtain consent from him in October 2005 because her attorney did not advise her to do so. Further, Parker had not been adjudicated Andy's father at that point. Melanie stated Dana did tell her Parker was the father; however, Melanie expressed her doubts, as Dana was dating several men at the time of Andy's conception. Melanie testified at no point did Parker make an attempt to visit or contact Andy.

¶ 13. Mark testified that he and Melanie divorced in approximately 2007, and Melanie has full custody of Andy. Mark now lives in Nevada, and has only visited Andy four times since the divorce.⁴ Mark claimed he knew where Parker lived, but Melanie never asked for the information. Also, Parker had not asked him for information about Andy in the last five years.

¶ 14. Parker testified that he provided financial support to Dana during her pregnancy, as Dana had no income. He also transported her to the doctor. He claimed he and Dana were engaged before she became pregnant. Once Dana and Andy moved out of his parents' mobile home in June 2004, approximately one month after Andy was born, Parker did not have much contact with her. Parker claimed not to have received summonses for the youth court proceedings, but found out about them through his mother, whom Dana had told about the proceedings.⁵ When he met Melanie at the Waffle House, he agreed to the adoption as long as he could visit Andy, but the record indicates he never did. Initially, Parker claimed he had no idea that the December 2005 adoption had taken place until “a couple of years” later, but on cross-examination he stated that he had knowledge of the adoption in May 2006. He was not served any summonses to appear in chancery court, and did not know in which county the adoption took place. He made an effort to communicate with Andy by calling and emailing Melanie, but denied knowing where she lived. He had not seen Andy since the Waffle House meeting over six years ago.

¶ 15. On cross-examination, Parker admitted that he had made no attempt to have his name placed on Andy's birth certificate from the time of Andy's birth until his petition to set aside the adoption, or approximately six years. Importantly, Parker admitted that he had an “arrangement” with Dana—she would pay for the adoption litigation, but she wanted visitation rights if Parker obtained custody of Andy. At the time of the hearing, Parker was married to another woman and had two other children. They resided at the mobile home in Brandon. Parker was a general laborer but unemployed, although he hoped to start a new job the following week.

¶ 16. Dana testified that Parker supported her during the pregnancy—he bought groceries, clothes, and a crib for Andy. She also stated he helped care for the baby. Dana claimed to thwart Parker's relationship with Andy by not giving him her new telephone number. Dana stated she left the house of Parker's parents because she suspected Parker was using marijuana and crystal methamphetamine—a claim Parker denied. She also admitted that she was paying for this litigation, and if Parker...