Z.M.J. v. C.J. (In re Adoption of Z.M.J.), 2019-CA-01083-COA
| Decision Date | 15 December 2020 |
| Docket Number | NO. 2019-CA-01083-COA,2019-CA-01083-COA |
| Parties | IN THE MATTER OF THE ADOPTION OF Z.M.J.: S.J. APPELLANT v. C.J. AND K.J. APPELLEES |
| Court | Mississippi Court of Appeals |
IN THE MATTER OF THE ADOPTION OF Z.M.J.: S.J. APPELLANT
v.
C.J. AND K.J. APPELLEES
NO. 2019-CA-01083-COA
COURT OF APPEALS OF THE STATE OF MISSISSIPPI
December 15, 2020
DATE OF JUDGMENT: 02/04/2019
TRIAL JUDGE: HON. ROBERT GEORGE CLARK III
COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: J. M. RITCHEY
ATTORNEY FOR APPELLEES: TAMETRICE EDRICKA HODGES
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: AFFIRMED - 12/15/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
McDONALD, J., FOR THE COURT:
¶1. This appeal arises from the termination of parental rights (TPR) decision involving one minor child, Ashley.1 The Madison County Chancery Court terminated the parental rights for both Sally Doe (natural mother) and Steven Johnson (putative father) on the grounds of abandonment. The chancery court also ordered Ashley to remain in the custody of Constance White (potential adoptive mother) and Keith White (potential adoptive father). Sally now appeals the chancellor's TPR decision on the grounds that she did not abandon nor
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desert Ashley. In addition, Sally argues that the chancellor failed to consider the reunification between her and Ashley. Finding that there was clear and convincing evidence to support the chancery court's ruling, we affirm.
A. Background Information Regarding Sally and Steven
¶2. Ashley was born in January 2015. At the time that Ashley was conceived, Sally, her mother, was separated from her husband, Randy Doe, who had run off with another woman in 2013. While they were married, Randy was the sole provider for their household. After Randy left, Sally, who was unemployed, became the sole means of support for herself and her children.2 In 2014, Sally met Steven, a convicted felon, who had been released on parole. They became intimate, and Ashley was conceived. In 2015, Steven's parole was revoked, and he was incarcerated at the time of Ashley's birth.
B. History of Ashley's Care
¶3. In August 2014, Sally and Constance attended a mutual friend's wedding.3 Constance approached an obviously pregnant Sally and asked, "[W]ill you let me have your baby?" Sally told her no. But Constance was aware that Sally and a person named Molly Smith had an agreement whereby Sally had given one of her children to Molly to raise. Constance also
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told Sally that she was unable to bear children. Sally stated that she told Constance, "What we can do is: You can help me with my baby. You know, I got all the other children. Help me raise—you know, help me financial[ly] with that baby." Sally also testified that she told Constance, "[Y[ou can help me with this baby but don't take this baby away from the brothers and sisters. [D]on't take the baby away from the family." According to Sally, both she and Constance agreed that Constance would help support and care for Ashley.
¶4. On January 20, 2015, Sally called Constance to notify her of Ashley's birth, and Constance visited Ashley in the hospital. Constance and Keith brought Ashley to their home to live with them on February 12, 2015. According to Constance, from February 12, 2015, through about July 2015, Sally kept Ashley at her home from about 6:30 a.m. until around 4:00 p.m. each weekday because Constance and Keith were both at work. Sally was not paid to keep Ashley during the day. Constance stated that this arrangement was also done in an effort to allow Ashley the opportunity to spend time with her other siblings. Either Constance or Keith would drop Ashley off at Sally's home in the mornings, and one of them would pick Ashley up after work.
¶5. The parties disagree about the events after June 2015. According to Sally, in June 2015, after her brother died, Constance called and told her that she would keep Ashley while Sally and her family were making funeral arrangements and grieving their loss. Sally agreed. After her brother's funeral service, Sally claimed that she and Constance resumed their prior arrangement with Sally keeping Ashley during the day. According to Sally, this arrangement continued for the next two years until Constance enrolled Ashley in a daycare center in
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March 2017.4 After Ashley was enrolled in daycare, Sally claimed that whenever she would call to arrange a visit with Ashley, Constance always seemed to have other plans. Sally asserted that she last saw Ashley on Christmas in 2017. But she admitted that she deliberately failed to visit Ashley from December 2017 to June 2018 because she was frustrated with what she claimed were Constance's attempts to keep Ashley away from her. But Sally asserted that she never went a full year without seeing Ashley. According to Sally, she had constant contact with Ashley until 2018.5
¶6. In direct opposition to Sally's testimony, Constance and Keith claimed that after Ashley was five-and-a-half months old, Sally never visited Ashley or called about her again. According to Constance, around August 2015, she and Keith hired an off-site private babysitter, whom they paid $50 per week to watch Ashley from the age of five-and-a-half months to two years old. Ashley was then enrolled in a daycare center in March 2017. Constance testified she tried to contact Sally to see Ashley, but Sally frequently called her from different numbers; therefore, Constance did not have a reliable number at which Sally could be reached. Constance and Keith continued to care for and support Ashley, including providing food, shelter, child care, and medical care, while Sally never provided any financial assistance for Ashley—not even nominal assistance like birthday or Christmas presents.
¶7. On May 7, 2018, when Ashley was nearly three-and-a-half years old, Constance and
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Keith filed a petition for the adoption of Ashley in the Madison County Chancery Court. On June 1, 2018, Constance and Keith filed a petition to terminate Sally's parental rights or, in the alternative, for sole physical and legal custody on the following grounds: (1) that Sally abandoned Ashley; (2) that Sally and Ashley's relationship had substantially eroded; and (3) that it would be in the best interest of Ashley that Sally's parental rights be terminated so that Ashley could be formally adopted by Constance and Keith.6 On June 21, 2018, the chancery court appointed a guardian ad litem (GAL) to protect Ashley's interests.
¶8. In August 2018, Sally and her daughter Maureen visited Ashley for the first time at the daycare center and tried to take her away. But the daycare director called Constance and law enforcement, so Sally was not able to take the child.7 Within the next couple of days, law enforcement had to be called again when Constance brought Ashley to the daycare center and Sally and her sister came and blocked Constance's car. Although Constance was inside, she was frightened.
¶9. Constance and Keith then filed a petition for a temporary restraining order on August 15, 2018, claiming that Sally tried to take Ashley away from her daycare center. On the same day, Sally filed a motion for the temporary, legal, and physical custody of Ashley, as well as her answer to Constance and Keith's motion to terminate her parental rights. Sally argued
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that on June 1, 2018, Constance "kidnaped and inveigled" Ashley. Further, Sally alleged that since that date, Constance had secreted the child from her and refused to allow her to have any access to Ashley. In her answer, Sally asserted insufficiency of process, insufficiency of service of process, lack of jurisdiction, failure to join a necessary party under Mississippi Rule of Civil Procedure 9, separation of siblings, lack of standing, and kidnapping.
C. Court Proceedings
¶10. Pursuant to the statute,8 the chancery court judge appointed a GAL to investigate and make a recommendation about what would be in the best interest of the child. In September 2018, after interviewing Constance, Keith, and Sally, the GAL submitted a preliminary report to the chancery court recommending that the court move forward with the termination of Sally's parental rights.9
¶11. The court met with the parties and their attorneys on September 27, 2018, to deal with the temporary custody motion. Sally did not agree to temporary custody but she did agree and acknowledge that Ashley had been in the care and custody of Constance and Keith since she was three weeks old. However, the court entered what it entitled an "agreed order" awarding temporary custody to Constance and Keith.10
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¶12. On September 17, 2018, Constance and Keith filed a motion to add a defendant, alleging that Steven was Ashley's biological father and therefore a necessary party to the action. After a hearing on the motion to add a defendant, on October 12, 2018, the court found that Sally had identified Steven as Ashley's natural father, making him an indispensable, necessary party to the action. Therefore, Steven was officially added to the action as a defendant. Steven was served a Rule 81 summons on December 8, 2018, notifying him of the trial date. M.R.C.P. 81. Although Steven did not answer the complaint, he made an appearance at trial and testified that although he was released from prison in 2016, he had never provided support for or attempted to see Ashley. At the time of the testimony, he had only seen Ashley once in four years...
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