Wells v. Smith (In re Smith)

• Decision Date: 20 September 2012
• Docket Number: No. 2009–CT–01955–SCT.,2009–CT–01955–SCT.
• Citation: 97 So.3d 43
• Parties: In the matter of the Petition of William SMITH and Wife Sara Smith for the Adoption of Jason Wells, a Minor Child: Tara Wells, v. William SMITH and Sarah Smith.
• Court: Mississippi Supreme Court

97 So.3d 43

In the matter of the Petition of William SMITH and Wife Sara Smith for the Adoption of Jason Wells, a Minor Child: Tara Wells,

v.William SMITH and Sarah Smith.

No. 2009–CT–01955–SCT.

Supreme Court of Mississippi.

July 26, 2012.

Rehearing Denied Sept. 20, 2012.

John D. Weddle, attorney for appellant.

Joe M. Davis and John A. Ferrell, attorneys for appellees.

EN BANC.

ON WRIT OF CERTIORARI

WALLER, Chief Justice, for the Court:

¶ 1. William and Sarah Smith are the grandparents of Jason Wells. Jason's mother, Tara Wells, is Sarah's daughter.¹ The Smiths filed a petition for temporary and permanent custody of Jason. They later filed a separate petition for adoption and to terminate the parental rights of Tara and Robert Johnson, the biological father. The chancellor declined to terminate Tara's and Robert's parental rights but awarded the Smiths primary custody of Jason. In awarding the Smiths custody, the chancellor found that Tara had “by her long and continuous absences from [Jason] failed to exercise her parental rights and fulfill her parental responsibilities.” He found that this had caused the Smiths to assume the role of parents to Jason for virtually his entire life and that the Smiths thus stood in loco parentis. The chancellor then conducted a best-interest, Albright² analysis and concluded that Jason should remain with the Smiths.

¶ 2. Under Mississippi law, a natural parent loses the legal presumption that custody should be with him or her only if there has been a clear showing of abandonment, desertion, or unfitness on the part of the parent. See infra ¶ ¶ 8–9. The Albright factors are not considered unless such showing has first been made. Id. Since the chancellor here proceeded to conduct an Albright analysis, he treated the natural-parent presumption as though it had been overcome; thus, he implicitly and necessarily found that it had been. We must decide whether he did so based on the doctrine of in loco parentis—which would be error—or based on a finding of desertion by Tara, which, in turn, had necessitated the Smiths standing as in loco parentis for Jason. We find the latter; therefore, we affirm the judgment of the chancery court.

FACTS

¶ 3. The Court of Appeals set out the facts and procedural background as follows:

Jason was born on June 14, 2003. Sarah is Jason's maternal grandmother; William is related to Jason only by marriage. After Jason was born, he and Tara lived with the Smiths while Tara attended college. Tara sometimes visited Jason during the weekends while she attended college. Tara attended school for approximately the first three years after Jason was born. According to the Smiths, Tara's visits with Jason became less frequent the longer she was in school. In April 2006, Robert and Tara were married. Robert was in the military and was stationed near Washington D.C.; Tara moved to Washington D.C. shortly after the marriage, and Jason went to live with Tara in Washington D.C. approximately a month later. In June 2006, after being married for less than three months, Tara and Robert separated. Not long after his arrival in Washington D.C., Jason returned to Mississippi. Jason spent time in both Washington D.C. and Mississippi until November 2006, when he permanently returned to Mississippi. Jason lived with Robert's parents for some of his time in Mississippi in 2006, although he eventually moved in permanently with the Smiths. Around the same time, Tara lost her job in Washington D.C.

Tara worked a number of different jobs beginning in 2007. Jason remained in Mississippi, and Tara visited him here sporadically. According to William, he offered to pay for Tara to move back to Mississippi, but she refused. In April or May 2007, Tara gave the Smiths medical guardianship over Jason. According to Cindy Howell, Tara's sister, Cindy once planned a birthday party for Jason that Tara was supposed to attend, but Tara spent her time in Jackson, Mississippi, with a boyfriend instead of visiting Jason.

From January 2008 to June 2008, Tara's visits with Jason became more infrequent. From February 2008 to March 2009, Tara worked for a company called Soft Edge. She indicated that she made enough money at this job to support herself; regardless, she made no attempt to live with Jason during her employment. In December 2008, Tara moved in with another man, Neil Baker. In March 2009, Tara and Baker moved to Arizona. Tara and Baker became engaged, despite Tara's inability to locate Robert, to whom she was still married. In April 2009, the chancery court appointed a guardian ad litem (GAL) to represent Jason's interest; at the time of the GAL's report, Tara was dependent on Baker for financial support. At that time, Baker had never met Jason.

Jason's school teachers testified that the only mother or father that Jason had ever mentioned were the Smiths. In December 2008, Robert joined in the Smiths' petition for custody of Jason and consented to the Smiths' continued custody of Jason. Robert also consented to and joined in the Smiths' petition to adopt Jason.

The GAL recommended to the court that Jason's best interest would be served by remaining in the custody of the Smiths. In his report, the GAL noted: “While it is undisputed that [Tara] loves her son, the facts clearly establish that she has done little to insure his welfare, other than leaving him with [William] and [Sarah].”Smith ex rel. Adoption of Wells v. Smith, 97 So.3d 88, 90 (Miss.Ct.App. May 31, 2011).

¶ 4. The chancery court found that Tara had “failed to exercise her parental rights and fulfill her parental responsibilities” by her “long and continuous absences” from Jason. Consequently, the Smiths had raised Jason virtually his entire life and therefore stood in the position of in loco parentis. The chancery court then proceeded to conduct an analysis based on the Albright factors to determine custody. It concluded that Jason's best interest was served by allowing the Smiths to retain custody.

¶ 5. Tara appealed to this Court, and we assigned the case to the Court of Appeals. She argued that the chancery court had erroneously relied upon the Smiths' status as in loco parentis to find that Tara's right to the natural-parent presumption had been relinquished. The Court of Appeals agreed. Smith ex rel. Adoption of Wells v. Smith, 97 So.3d 88, 90–91. It reversed and remanded the case for the chancery court to determine instead whether Tara had relinquished her right to the natural-parent presumption by deserting Jason. Id.

¶ 6. The Smiths now file this petition for writ of certiorari. They argue that the chancery court did find that Tara had deserted Jason and that it had used desertion—not the doctrine of in loco parentis—as the basis for its finding that Tara had relinquished the natural-parent presumption. Alternatively, the Smiths assert that their standing as in loco parentis should overcome the natural-parent presumption in favor of Tara. We granted certiorari to address these issues.

DISCUSSION

¶ 7. 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. E.g., Johnson v. Gray, 859 So.2d 1006, 1012 (Miss.2003) (citing Mabus v. Mabus, 847 So.2d 815, 818 (Miss.2003)).

¶ 8. The best interest of the child is paramount in any child-custody case. E.g., Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994) (citing Smith v. Todd, 464 So.2d 1155 (Miss.1985)). In custody battles between a natural parent and a third party, it is presumed that it is in the child's best interest to remain with his or her natural parent. Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992) (quoting Rodgers v. Rodgers, 274 So.2d 671, 672 (Miss.1973)). To be awarded custody, therefore, the third party must first clearly rebut the natural-parent presumption or preference; if it is successfully rebutted, the chancellor must then examine the Albright factors and determine that third-party custody serves the best interest of the child. Logan v. Logan, 730 So.2d 1124, 1127 (Miss.1998); see also In re Custody of M.A.G., 859 So.2d 1001, 1004 (Miss.2003) (stating that “a finding of unfitness is necessary to award custody to a third party against a natural parent and must be done before any analysis using the Albright factors”).

¶ 9. The natural-parent presumption can be rebutted by a clear showing that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent's conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody. Carter, 611 So.2d at 876 (quoting Rodgers, 274 So.2d at 672);Vaughn v. Davis, 36 So.3d 1261, 1264–65 (Miss.2010); In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 429–30 (Miss.2009).

¶ 10. The doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption. The term in loco parentis means “in the place of a parent.” Farve v. Medders, 241 Miss. 75, 81, 128 So.2d 877, 879 (1961). It “ ‘exists when [one] person undertakes care and control of another in absence of such supervision by [the] latter's natural parents and in absence of formal legal approval, and is temporary in character and is not to be likened to an adoption which is permanent.’ ” J.P.M. v. T.D.M., 932 So.2d 760, 780 (Miss.2006) (quoting Black's Law Dictionary 787 (6th ed. 1990)) (Cobb, P.J., specially concurring); see also J.P.M., 932 So.2d at 769 n. 6 (Miss.2006) (quoting Griffith v. Pell, 881 So.2d 184, 186 n. 1 (Miss.2004)) (defining in loco parentis as “ ‘[a]ny person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child ...’ ”).

¶ 11. In loco parentis can—in very limited, unique situations—sometimes be used to help rebut the natural-parent presumption. In both Pell and J.P.M, a husband learned during the pendency...