Vance v. Lincoln County Dept. of Public Welfare by Weathers

• Decision Date: 05 June 1991
• Docket Number: No. 89-CA-1173,89-CA-1173
• Citation: 582 So.2d 414
• Parties: Jacqueline VANCE v. LINCOLN COUNTY DEPARTMENT OF PUBLIC WELFARE, by Walter F. WEATHERS, Social Services Area Director, and D.W., and C.T., Minors, by and Through Their Next Friend, Walter F. Weathers.
• Court: Mississippi Supreme Court

Page 414

582 So.2d 414

Jacqueline VANCE v. LINCOLN COUNTY DEPARTMENT OF PUBLIC WELFARE, by Walter F WEATHERS, Social Services Area Director, and D.W. and C.T., Minors, by and Through Their Next Friend, Walter F. Weathers.

No. 89-CA-1173.

Supreme Court of Mississippi.

June 5, 1991.

Vivian Brown-Toussaint, Natchez, Deborah A. McDonald, McComb, for appellant.

Mike C. Moore, Atty. Gen., Jackson, Patricia B. Marshall, J.D. Woodcock, Cassandra D. Burney, Sp. Asst. Attys. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PITTMAN and BANKS, JJ.

PITTMAN, Justice, for the Court:

The Lincoln County Department of Public Welfare, now known as the Lincoln County Department of Human Services, petitioned in Lincoln County Chancery Court to terminate the parental rights of Jacqueline Vance as to two of her children, D.W. and C.T. After making the requisite findings under Miss.Code Ann. Sec. 93-15-103 (Supp.1987), the chancery court terminated Jacqueline Vance's parental rights as to D.W. and C.T. Jacqueline Vance appeals, alleging errors concerning the evidentiary support for the lower court's finding, as well as the constitutional viability of Sec. 93-15-103. We find these allegations meritless and affirm.

I.

Jacqueline Vance is the mother of three children: D.W., born June 16, 1975, fourteen years old at the time of the hearing in this cause; C.T., born December 21, 1981, seven years old at that time; and Candace Andrenette Vance, born January 17, 1985. Candace lives with her aunt in Illinois. She is not under the jurisdiction of this state's department of human services and Jacqueline's parental rights as to her are not a subject of this appeal.

In July 1984, Jacqueline, D.W. and C.T. were living in Chicago. At that time Jacqueline was arrested and charged with murder and armed robbery. Jacqueline sent D.W. and C.T. to Lincoln County, Mississippi to stay with Bertha Collins, who had been Jacqueline's foster mother when she was younger. Eventually, in October 1984, because of ill health and financial problems, Mrs. Collins handed over custody of D.W. and C.T. to the Lincoln County Welfare Department. The children then lived with various relatives, including John Wall, Jacqueline's brother; Kathy Blue, Jacqueline's cousin; and Rickey Vance, Jacqueline's brother. None of these arrangements worked out for very long, and Rickey Vance eventually handed the children back to the Welfare Department. The children were placed back with Bertha Collins, where they remained until Mrs. Collins suffered a stroke. They then lived with a series of foster parents. D.W. eventually ended up back with Mrs. Collins and her husband. Because of C.T.'s behavior problems, she was placed in a therapeutic foster home. Foster parents in these homes had received specialized training in dealing with children with behavior problems.

Jacqueline Vance was eventually convicted on both charges and was sentenced to fifty-four (54) years on the charge of murder and thirty (30) years on the charge of armed robbery, with the sentences to run concurrently. She was incarcerated in the Dwight Correctional Center on or about April 24, 1985. While at Dwight she was convicted of aggravated battery of a correctional officer, and had two years added to her sentence. She has appealed her criminal convictions. Her earliest possible parole date, in the event of an unsuccessful appeal, is not clear from the record.

On April 6, 1988, the Lincoln County Department of Public Welfare filed a Petition to Terminate Parental Rights, alleging that it had had custody of D.W. and C.T. for over one year, and had attempted to place them with relatives or foster homes on a long-term basis during that time, but had been unable to do so. The petition further alleged that Jacqueline Vance had asked that the children be placed with the Illinois Department of Children and Family Services, but this agency had refused to take the children. The petition finally alleged that there had been a substantial erosion of the relationship between Jacqueline and the children, such that her parental rights should be terminated pursuant to Miss.Code Ann. Sec. 93-15-103(3)(e) (Supp.1987). The putative fathers of D.W. and C.T. both executed releases as to any parental rights they might have had. A guardian ad litem was appointed to represent D.W. and C.T. After a hearing, the lower court found that a substantial erosion of the relationship between the children and Jacqueline had been shown by clear and convincing evidence. Jacqueline Vance's parental rights as to D.W. and C.T. were terminated. The court also rejected constitutional challenges to Sec. 93-15-103.

II.

The applicable statute Miss.Code Ann. Sec. 93-15-103 (Supp.1987) provides in part:

(1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child's bonds to his natural parents and the effect of future contact between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.

(2) The rights of a parent with reference to a child, including parental rights to control or withhold consent to an adoption, and the right to receive notice of a hearing on a petition for adoption, may be relinquished and the relationship of the parent and child terminated by the execution of a written voluntary release, signed by the parent, regardless of the age of the parent.

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:

....

(e) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent's serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment.

(4) Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the department of public welfare should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

The burden of proof in such a case is by clear and convincing evidence. Miss.Code Ann. Sec. 93-15-109 (Supp.1987); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The chancellor's findings of fact are viewed under the manifest error/substantial credible evidence test. Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985); Veselits v. Cruthirds, 548 So.2d 1312, 1316 (Miss.1989). Once the clear and convincing burden has been met, the best interest of the child is to be considered. Petit v. Holifield, 443 So.2d 874, 877 (Miss.1984). This Court has not been reluctant to reverse the lower court when the required burden of proof has not been met. See Petit; De La Oliva v. Lowndes County Department of Public Welfare, 423 So.2d 1328 (Miss.1982).

Jacqueline Vance argues that the Welfare Department did not meet its burden in this case, and that the lower court erred in finding that it had. Jacqueline Vance's right to raise her children is of a fundamental nature and is entitled to great protection. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). However, these parental rights may be abridged when the welfare of the children is threatened. Prince, 321 U.S. at 166-67, 64 S.Ct. at 442, 88 L.Ed. at 652. This Court provided, in Adams v. Powe, 469 So.2d 76, 78-79 (Miss.1985), the following:

Although aware of the great responsibility placed upon any court when determining whether a parent's fundamental right to rear their offspring should be terminated, we think we would be remiss in our duties if we did not terminate the parental rights to safeguard the childrens' greater right to food, shelter, and opportunity to become useful citizens.

Byrd Storey and Liz Polk, two Lincoln County social workers, testified as to the nature of the relationship between Jacqueline Vance and her children. Storey's testimony supported a finding of substantial erosion, but she had not been the actual social worker for the children for some time. Liz Polk had been the children's social worker since April 1986. Her testimony seemed to show indifference at best on the part of the children toward Jacqueline, and on C.T.'s part there was practically no relationship. She also testified that the children were doing well in foster care despite their uncertain future. Dr. Gerald O'Brian, a psychologist, concurred in this opinion. O'Brian reviewed case summaries on both children, prepared by Liz Polk, along with a psychological evaluation of C.T. He had also interviewed each child twice. He recommended a secure, stable home environment for both children, with continued therapy for C.T.

On the other hand, Jacqueline Vance testified that her relationship with her children had been a good one despite the obvious constraints, that she had relatives who were willing to take the children, and that decreasing contact between her and her children had often been the result of interference by the Welfare Department. Bertha Collins stated that the children knew their mother, that they wrote to her and talked to her over the phone without major problems, and that Jacqueline had sent money and gifts to her for the children.

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