SNc v. JRD, JR., No. 97-CT-01131-SCT.

• Decision Date: 10 February 2000
• Docket Number: No. 97-CT-01131-SCT.
• Citation: 755 So.2d 1077
• Parties: S.N.C. and J.H.C. v. J.R.D., Jr.
• Court: Mississippi Supreme Court

755 So.2d 1077

S.N.C. and J.H.C. v. J.R.D., Jr.

No. 97-CT-01131-SCT.

Supreme Court of Mississippi.

February 10, 2000.

John L. Maxey, II, Jackson, Attorney for Appellants.

Durwood J. Breeland, Brookhaven, Attorney for Appellee.

EN BANC.

COBB, Justice, for the Court:

¶ 1. J.H.C. and J.R.D., Jr. are the divorced natural parents of a seven-year-old child. J.H.C. and S.N.C., the child's stepfather, filed a petition seeking to terminate the parental rights of J.R.D., Jr., alleging that he had abandoned the child and that he was unfit to rear the child. They also asked the court to approve the adoption of the child by S.N.C. After a hearing on the issue of the termination of parental rights, the chancellor denied the petition and refused to terminate J.R.D., Jr.'s parental rights. J.H.C. and S.N.C. appealed from that decision of the Franklin County Chancery Court, and the Court of Appeals affirmed the chancellor. S.N.C. v. J.R.D., No. 97-CA-01131-COA (Miss.Ct.App. Feb.9, 1999). This Court granted certiorari because this case involves a fundamental issue of broad public importance. We also affirm.

FACTUAL BACKGROUND

¶ 2. A child was born to the marriage of J.H.C. and J.R.D., Jr. and less than a year thereafter, the parties divorced on May 6, 1992. Before the divorce, J.R.D., Jr. moved to Midland, Texas to live with his parents. The parties reached a settlement agreement and an agreed order was entered by the Franklin County Chancery Court. It did not require J.R.D., Jr. to pay child support and did not provide for specific visitation.

¶ 3. J.R.D., Jr. made several visits to see the minor child from the date of the divorce until the date of trial. Specifically, J.R.D., Jr. visited with the minor child during the summer of 1992, summer of 1993, Christmas of 1993, and summer 1994. The parties dispute whether J.R.D., Jr. visited with the child around Thanksgiving of 1994. In addition, a visit was scheduled for Memorial Day of 1995, but was canceled by J.H.C., who claimed that she and the child would be out of town. This visit was never rescheduled. J.R.D., Jr. admitted that he did not pay child support due to the aforementioned order, but he stated that he or his mother repeatedly asked J.H.C. if the minor child needed anything.

¶ 4. J.H.C. remarried in April 1994. On October 11, 1995, J.H.C. and S.N.C., her new husband, filed a petition to terminate J.R.D., Jr.'s parental rights and for S.N.C. to adopt the minor child. The petition claimed that J.R.D., Jr. had abandoned the child for over a year and was mentally, morally or otherwise unfit to be a parent.

¶ 5. James A. Torrey was appointed guardian ad litem, assigned to represent the interests of the minor child. At trial, he stated his concerns about the lack of contact by J.R.D., Jr. with the minor child. The guardian ad litem concluded that J.R.D., Jr. had abandoned his legal and civil responsibilities, and he recommended termination of J.R.D. Jr.'s parental rights and that the adoption be allowed.

¶ 6. In his bench opinion, the chancellor stated:

It's undisputed that [J.R.D., Jr.] paid no support based upon the letter and the agreement that was entered by the court. He had little contact, only five or six visits over the period of time prior to the filing of this suit and basically no telephone calls except through his mother. His testimony is that he requested her on occasion to call, and he did not call because he and his former wife didn't get along and argued and fussed when they did call.

Now, the plaintiffs argue that in spite of the letter concerning the child support and in spite of the agreed order, that [J.R.D., Jr.] was obligated to pay child support. That all parents are obligated, and I agree with that part. However, it's the court's opinion that this obligation was assumed by [J.H.C.] in this proceeding and [J.R.D., Jr.] had every right to rely on that assumption until he was notified otherwise. The testimony reflects that he was never advised that support was expected or needed.... But whatever was requested was provided.

Now, plaintiffs further argue that [J.R.D., Jr.] had abandoned [the minor child] for more than one year from May of 1994 to October of 1995 when the suit was filed. During this period of time frequent calls were made, scheduled visitation which had been arranged for May of 1995 was canceled by [J.H.C.] and the result was that there was no visitation although it was not the responsibility or altogether the responsibility of [J.R.D., Jr.]....

However, based on the record this court is of the opinion that the plaintiffs have failed to prove by clear and convincing evidence of abandonment or unfitness, either mentally or morally and it follows from that the best interest that [the minor child] would be served by dismissing the petition....

ANALYSIS

¶ 7. The standard of review on appeal of parental rights termination by abandonment matters is limited. "The chancellor's findings of fact are viewed under the manifest error/substantial credible evidence test." Vance v. Lincoln County Dep't of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991) (citing Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985); Veselits v. Cruthirds, 548 So.2d 1312, 1316 (Miss. 1989)). Additionally, the Court on appeal "ask[s] not how we would have decided the case ab initio but whether there be credible proof from which a rational trier of fact may have found abandonment by clear and convincing evidence." Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992). However, "where on review it is apparent the court below has misapprehended the controlling rules of law or has acted pursuant to a substantially erroneous view of the law, we will proceed de novo and promptly reverse." Id.

¶ 8. The chancellor appointed James A. Torrey to be guardian ad litem for the minor child in the parental rights termination proceedings. Torrey investigated the matter, interviewed the parties, and submitted his report to the court. He testified at trial and examined witnesses. He gave his opinion that J.R.D., Jr. had abandoned the child. Torrey also recommended that S.N.C. be allowed to adopt the child.

¶ 9. In his bench opinion the chancellor stated that he had "given careful consideration to the recommendations of the guardian ad litem." However, he found that the record did not support the guardian ad litem's recommendation. He found that the petitioners' claim that J.R.D., Jr. had abandoned the child from May of 1994 until October of 1995 was not supported by the evidence. The chancellor determined that J.R.D., Jr.'s mother had made frequent phone calls at least partly on behalf of J.R.D., Jr. The chancellor also found that J.H.C. had canceled a planned visit by J.R.D., Jr. in May of 1995 by telling J.R.D., Jr. that she and the child would be out of town and unavailable for visitation. Although the chancellor did not address the evidence in more detail in his bench opinion, there was extensive testimony that J.R.D., Jr. had visited the child around Thanksgiving of 1994, which also would have tolled the one-year abandonment time period. There was also testimony that J.R.D., Jr. had sent cards and gifts to the child on occasion or that his mother had sent the presents on his behalf.

¶ 10. In order to terminate the parental rights of J.R.D., Jr. and enable the adoption by S.N.C., the petitioners were required to prove that he had abandoned the child without contact for over one year or that he was mentally, morally, or otherwise unfit to rear the child. Miss.Code Ann. § 93-17-7 & § 93-15-103 (1994 & Supp.1999). The chancellor and the Court of Appeals found that there was no evidence introduced that J.R.D., Jr. was mentally, morally, or otherwise unfit to raise the child. The only evidence offered to show that he was unfit was an allegedly abusive incident between J.R.D., Jr. and J.H.C. in 1992. The chancellor and the Court of Appeals correctly found that this was not a "series of abusive incidents concerning one or more child" under Miss. Code Ann. § 93-15-103. The guardian ad litem's recommendation did not examine J.R.D., Jr.'s fitness to be a parent, and the petitioners do not raise the issue in their petition for certiorari. The substantive question before the Court, therefore, is whether J.R.D., Jr's conduct with regard to his child amounted to abandonment.

¶ 11. Abandonment is defined as "any conduct by a parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child." Natural Mother v. Paternal Aunt, 583 So.2d 614, 618 (Miss.1991). "The test is an objective one: whether under the totality of the circumstances ... the natural parent has manifested [his] severance of all ties with the child." Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992). The party seeking to terminate a natural parent's rights must prove his case by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), Miss.Code Ann. § 93-15-109 (Supp.1999).

¶ 12. The chancellor found that the petitioners had not proved by clear and convincing evidence that J.R.D., Jr. had abandoned the child. The bench opinion stated that J.R.D., Jr. "should have done more" for his child and that he was not an ideal parent. But the trial court did not find that he had abandoned the child without contact for one year. The chancellor's opinion is supported by credible evidence in the record. The parties agree that J.R.D., Jr. visited his son in the summer of 1994. The parties also agree that J.R.D., Jr. had made plans to drive from Midland, Texas, to visit his son in Franklin County on Memorial Day weekend in May of 1995, but that the visit did not occur because...