Smith v. Doe
| Decision Date | 30 March 2021 |
| Docket Number | NO. 2019-CA-01654-COA,2019-CA-01654-COA |
| Citation | 314 So.3d 154 |
| Parties | Michael SMITH, Appellant v. Katie DOE, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: CHARLES E. LAWRENCE JR.
ATTORNEY FOR APPELLEE: SHAWN M. LOWREY, Hattiesburg
BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.
McDONALD, J., FOR THE COURT:
¶1. This appeal arises from the termination of Michael Smith's parental rights by the Forrest County Chancery Court on the ground of Smith's abandonment of his biological minor child, Matthew.1 Michael appeals, claiming that the proof showed that he did not abandon Matthew. Finding that there was clear and convincing evidence to support the chancery court's ruling, we affirm.
Statement of the Facts and Procedural History
¶2. Michael Smith2 and Katie Doe met while attending college and formed a relationship. When Katie became pregnant in 2011, Michael and Katie decided to move into an apartment together. Michael accompanied Katie to prenatal appointments. Their son, Matthew, was born on February 15, 2012. Michael and his mother, Dr. Danielle Smith, were present when Katie gave birth to Matthew. Katie and Michael continued living together until June 2012, when their relationship ended because of a dispute regarding Michael's mother. According to Michael, Katie wanted him to move out of the apartment. When he refused, Katie took Matthew and moved into her parents' house. Michael moved into a new apartment complex. He asked Katie to move in with him, but she refused because she did not want go against her father's wishes.
¶3. During July 2012, Katie and Michael met on two occasions to discuss Michael's visitation schedule with Matthew. But arguments ensued, and the two came to no resolution regarding Michael's visitation. From July 2012 to December 2012, Michael saw Matthew only once. In December 2012, Michael and Danielle sent Christmas presents to Katie, who was still living at her parents' house, which Katie received.
¶4. In January 2013, Michael briefly moved to Atlanta, Georgia. Michael emailed Katie on January 20, 2013, requesting to set up a visitation schedule to see Matthew:
Hi. I hope this message finds you in good health and spirit. I have tried to call you but I can not reach you so I am sending this email. First of all how is [Matthew] doing? I know he is big now and I hope he walking now. I just want the opportunity to express some things to you. I would like to share some feelings I have, some thing I would like to apologize for and to come up with a plan for me to be involved in [Matthew's] life. Please give me a call when you can or send and email or text whenever you can.
The email, however, did not contain a domain address (i.e., "@yahoo.com"), so Katie never received it. Believing that he and Katie would establish a proper visitation schedule, Michael moved back to Mississippi in February 2013. Michael tried to call Katie to bring Matthew to his apartment, but she refused because she did not want Michael to be alone with Matthew. A month later, Katie brought Matthew to a restaurant so that Michael could spend time with him. That same month, Katie and Matthew moved into an apartment complex with her then fiancé John Jones, whom she had been dating since October 2012. Michael did not see Matthew again until November 2013. During Thanksgiving in 2013, Katie brought Matthew to a hotel to visit Michael and Danielle. This would be the last time that Michael would see Matthew.
¶5. The Department of Human Services (DHS) filed a complaint for support and other relief against Michael on April 14, 2014, in the Forrest County Chancery Court. Michael obtained counsel in November 2014. An order for a continuance was filed in December 2014. During the same month, Michael and Danielle attempted to send Christmas presents to Matthew. They again mailed the presents to Katie's parents' house, but this time the presents were returned to them.
¶6. On February 17, 2015, the court entered an agreed judgment for support and other relief, which was signed by both parties' counsel. The judgment stated that beginning on March 1, 2015, Michael was required to pay $140 per month for Matthew's child support until Matthew reaches the age twenty-one. Additionally, Michael was ordered to pay $25 per month for Matthew's medical support. Michael paid both the child support and medical support. Although Michael obtained counsel for both the child support claim and to establish visitation rights, his counsel did not file anything regarding visitation or custody until April 2016.
¶7. Michael filed a complaint to establish paternity, for permanent custody, for a temporary judgment, and for other relief on April 11, 2016. Michael requested full legal and physical custody of Matthew and that Katie be ordered to pay child support. Further, if the court did not award him full custody, then Michael requested that the court should award him joint legal custody. Additionally, Michael requested visitation.3 Michael also requested temporary custody while the case was pending.
¶8. On April 20, 2016, Katie signed a voluntary acknowledgment of paternity, establishing that Michael was Matthew's biological father. Katie's counsel also prepared a prepared temporary order that Katie signed, which was given to Michael for his review. The temporary order stated (1) that Michael would see Matthew once per week for two hours outside of Michael's apartment; (2) that Katie must be present during visitation; (3) that the parties would coordinate when and where the visits were to take place; and (4) that telephone visitation would be allowed three times per week, including video calls. On April 26, 2016, Michael's counsel sent a letter to Katie's counsel, rejecting the temporary order because Michael wanted more visitation. Later that year, on an undisclosed date, Katie's fiancé John sent Michael the following Facebook message:
You may or may not know me but I'm [Katie's] fiancé. She told me she called you today about getting his name changed and you said you wanted joint custody. She also said you think she has been keeping you from [Matthew]. How about this, you can see [Matthew] when you would like. You want to see him just call and we can set something up. We want to change his name because he has never been called [Matthew] and he only knows his name to be [Kameron4 ]. I don't know your reasons to not be a father to him but saying we have kept him from you is false. I have raised him these last 3 years and you would have to kill me to keep me from him. You want to see him then act like it. The fact that you have a picture of him on your profile that you didn't even take from 2 years ago shows to me that you aren't serious about being a father. If you want to be a father take the proper steps to be one. Also if you don't want the responsibility you can sign your rights over and keep doing what you been doing and no one will know the difference. I raise him and would give my life for his happiness. So if you feel the same way act like it and talk to me about it.
Michael did not respond to John's message.5 There was no communication between Michael and Katie until 2017.
¶9. In February 2017, both Michael's and Katie's lawyers moved to withdraw from the case. The court granted both motions in March 2017. For about a year, nothing happened in the case.6
¶10. Michael obtained new counsel on March 14, 2018. A hearing for visitation took place on May 9, 2018, which Katie failed to attend. Because Katie failed to appear at the hearing, on July 17, 2018, the chancery court awarded Michael joint legal custody and delineated his visitation rights to every other weekend from Friday at 6:00 p.m. to Sunday 6:00 p.m., four weeks in the summer, and holiday visitation.
¶11. On August 22, 2018, under new counsel, Katie filed a Mississippi Rule of Civil Procedure 60 motion for relief from judgment and a counter-petition for termination of parental rights, modification of child support, and other relief. Katie asserted that she had only received notice of the hearing on the same day as the hearing and that Michael's counsel assured her that no order would be entered. Regarding terminating Michael's parental rights, Katie asserted that Michael had not had a relationship with Matthew since the first few months of Matthew's life. Katie sought to terminate Michael's parental rights on the grounds of abandonment, desertion, unwillingness to provide reasonable and necessary food and clothing, shelter, and/or medical care, failure to exercise reasonable visitation or communication with the child, substantial erosion of the parent-child relationship, and any and all other applicable factors under Mississippi Code Annotated sections 93-15-119 and 93-15-121 (Supp. 2017). Additionally, Katie requested the court to appoint a guardian ad litem (GAL).
¶12. On September 17, 2018, Michael responded to Katie's motion, generally denying all allegations. In addition, Michael filed a counterclaim for contempt, stating that Katie failed to abide by the court's order to allow visitation. Michael claimed that Katie was hostile when he asked about visitation. Michael also requested that Katie be sanctioned or incarcerated. Katie filed a motion to dismiss Michael's counterclaim for contempt on October 3, 2018.
¶13. The chancery court granted Katie's Rule 60 motion without a hearing on November 5, 2018, finding that the motion was well-taken. Therefore, the court voided the order awarding Michael visitation rights and granting other relief that was entered on July 17, 2018.
¶14. On November 14, 2018, the chancery court judge appointed a GAL to investigate and make a recommendation about what would be in the best interest of the child.
¶15. The trial took place on August 22, 2019, and September 18, 2019. Five witnesses testified, including Michael, Katie, John, Danielle, and the GAL. Prior to the witnesses' testimonies, Michael withdrew his request for custody and proceeded on the issue of visitation.
¶16....
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