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CHRISTEEN MICHELLE OWENS, BY AND THROUGH HER GRANDMOTHER AND NEXT FRIEND PATSY K. MOSLEY v. VIRGINIA CAROL HUFFMAN

NOVEMBER 13, 1985

CHRISTEEN MICHELLE OWENS, BY AND THROUGH HER GRANDMOTHER AND NEXT FRIEND PATSY K. MOSLEY
v.
VIRGINIA CAROL HUFFMAN



BEFORE WALKER, HAWKINS AND PRATHER

HAWKINS, JUSTICE, FOR THE COURT:

Mrs. Virginia Carol Huffman filed a petition in the Chancery Court of Clay County for custody of her daughter, Christeen Michelle Owens, against her mother, Mrs. Patsy K. Mosley, Christeen's grandmother, who had been awarded custody by an Arizona state court. Mrs. Mosley filed a petition for a writ of habeas corpus based upon the Arizona judgment. The two petitions were consolidated for hearing, and the chancellor heard the petition for habeas corpus first.

At the conclusion of the hearing, the chancellor declined to give full faith and credit to the Arizona order pending a custody hearing to determine what was in the child's best interest. An appeal, however, was permitted Mrs. Mosley on the denial of her petition.

 On this appeal we confront the issue of whether the chancellor was bound to give full faith and credit to the Arizona state court order, or was authorized to retain jurisdiction for a full custody hearing.

 Persuaded that this child was never afforded the protection of the Uniform Child Custody Jurisdiction Act (UCCJA), and her first opportunity for such protection is in the Clay County Chancery Court, we affirm.

 In this pathetic case we are presented the opportunity to analyze the letter as well as the spirit of the UCCJA, and the obligation of a state court to give full faith and credit to a foreign judgment in which the UCCJA was not substantially followed in rendering such judgment.

 FACTS

 Mrs. Huffman is the natural mother of Christeen, born September 22, 1976, in Denver, Colorado. The father, John Henry Owens, apparently abandoned his wife, Virginia, and their children on or before Christeen's birth. Mrs. Huffman (then Virginia Owens) asked her mother and stepfather, Patsy K. Mosley and Billy Edward Mosley, for help, following which two of the children were adopted through the Colorado Welfare Department, and Mr. and Mrs. Mosley took Christeen. At that time Mr. Mosley (now retired) was employed as an auditor for the Bureau of Indian Affairs, and he and his wife when traveling resided in trailer parks. According to Mrs. Huffman, she wanted Mrs. Mosley to keep Christeen until she was able to look after her.

 From 1976 until 1980 Mrs. Huffman tried to get her daughter from her mother, who refused, telling Mrs. Huffman that she had custody and Mrs. Huffman could not have her back. Mrs. Huffman testified she was trying to get into the Air Force in order to hire a lawyer. In June, 1978, however, there was a Petition for Mr. and Mrs. Mosley to adopt Christeen filed in the Chancery Court of Lauderdale County, and Mrs. Huffman signed the Petition and joined in the proceedings. This adoption was never carried through.

 Mrs. Huffman, on July 17, 1979, married William H. Huffman, who had four children living with him. Thereafter, Mrs. Mosley agreed for her to have Christeen, and she and Mr. Huffman went to Denver in December, 1979, to get her. On the day they were to leave Christeen got sick, she'd had pneumonia two or three times, and there was a heavy snow on the ground, and heavy snowfall, and because of the weather and her condition, Christeen was left in Denver. In July, 1980, Mrs. Mosley, then living in Sherman, Texas, called Mrs. Huffman to come and get Christeen.

 Mr. and Mrs. Huffman got Christeen and returned to Mississippi, where Christeen lived with her mother, Mrs. Huffman, and her stepfather.

 On March 7, 1981, there was a "Tiny Miss Clay County

 Pageant," in which Christeen entered, and Mrs. Huffman

 invited Mr. and Mrs. Mosley to come for the pageant. Christeen won the pageant.

 After the pageant, Mrs. Mosley asked Mr. and Mrs. Huffman if they could take Christeen and the two stepdaughters to the Gulf Coast. Although hesitant, Mrs. Huffman agreed to do so, and Mr. and Mrs. Mosley left with the three children on March 10, 1981. That was the last Mrs. Huffman saw her daughter until two and a half years later.

 On March 13, 1981, a deputy sheriff of Clay County returned to the Huffman house in Clay County with the two stepdaughters. Mrs. Huffman asked the deputy where her daughter was, and he replied, "With your parents."

 The Huffmans began a series of efforts through law enforcement agencies to get Christeen back. The local officers and officials were reluctant to get involved, so the Huffmans employed private counsel, Mr. Clark Coleman of West Point, to help. Mr. Coleman prepared affidavits for kidnapping, and arrest warrants were issued for the Mosleys. Mr. Coleman was, however, hopeful that some sort of amicable agreement could be made to get the Mosleys to voluntarily return the child.

 Mr. Coleman recognized the Huffmans were poor people, unable to afford any kind of extensive legal assistance, and he attempted to work through law enforcement agencies to secure the child's return. After the kidnapping warrants were issued, he was informed at one time by the sheriff's office that the Mosleys were in Mississippi on the way to West Point to return Christeen. He understood that they were supposed to be in on a Saturday afternoon and would come to his office, and Mr. Coleman opened his office and waited for them. They never appeared.

 Mrs. Huffman had a card which Mrs. Mosley had given her some time previously which contained the name and telephone number of a Bill Miller, her attorney in Texas. Mr. Huffman telephoned this attorney on March 16, 1981, notifying him Christeen had been abducted. Mrs. Huffman also had two addresses in Sherman, Texas, one which Mrs. Mosley had given her, and another which she had given Mrs. Huffman's stepdaughter. Mrs. Huffman wrote her mother at both addresses. *fn1 None of the letters were returned.

 Mr. Coleman also telephoned Miller and told him what the Mosleys had done, that arrest warrants had been issued, but the Huffmans really wanted the child returned.

 Meanwhile, the Mosleys were not idle in Texas. On April 15, 1981, Mr. and Mrs. Mosley, as residents of Sherman, Texas, filed an original petition in the Fifteenth District Court of Grayson County, Texas, seeking to terminate all parental rights of Mrs. Huffman to Christeen. This petition, filed by Louis J. Emerson, Jr., a Sherman, Texas, attorney, specifically alleges that Mrs. Huffman:

 1. Voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return;

 2. Voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least six months;

 3. Failed to support the child in accordance with their ability during a period of one year ending within six months of the date of the filing of this petition. *fn2

 Mrs. Huffman was served with a citation on this petition by the Monroe County sheriff's office on April 29, 1981, which she promptly carried to Mr. Coleman. When Mr. Coleman was apprised of the Texas citation by Mrs. Huffman, he first advised the Huffmans they would need local representation in Texas, and suggested they secure such assistance through Legal Services. There was no attempt to get any attorney for Mrs. Huffman in Texas, however, because Mr. Coleman saw no need to following a telephone conversation with Emerson.

 Mr. Coleman testified he informed Emerson that the child had been living in Mississippi and the Mosleys had taken off with her, and there was an arrest warrant outstanding. The two attorneys talked about the consequences of the pending criminal charges, and Mr. Coleman asked the Texas attorney to hold up on the "termination procedure." Emerson then informed Mr. Coleman that the Mosleys were no longer in the area. Mr. Coleman then testified to the following:

 A. He told me that the Mosleys were no - this was probably on the second phone call - that the Mosleys were no longer in the area, and I asked him - I know I asked him that because we were thinking about forwarding that arrest out there and see if we couldn't have an arrest made, and we asked him to hold up on the child termination proceedings until the Mosleys got back and it could be discussed for voluntary return of the child, and he informed me that he would not proceed further with the termination without further contacting us, and that's the last contact we had with him.

 Following this there was no effort by Mr. Coleman to obtain legal assistance for the Huffmans in Texas.

 Unknown to Mr. Coleman and to the Huffmans, a termination decree was entered by the Texas Court on July 9, 1981, and after the Mosleys had moved. This decree recites the same specifics above set out in the petition. It also completely terminates Mrs. Huffman's right as a parent, even removing Christeen's right of inheritance from her mother, Mrs. Huffman, and her natural father.

 Back in Clay County the Huffmans were doing all they knew to do to secure Christeen's return. They did not know where the Mosleys were. Pursuing their unsuccessful efforts they began writing letters to prominent state and national officials, President Reagan, United States Senator John C. Stennis, the United States Attorney General, and Attorney General Bill Allain, and pressed the local prosecuting attorney and sheriff for action. The record contains letters of acknowledgment of their requests for help from the U.S. Department of Health and Human Resources dated November 1, 1981; from Senator Stennis, dated February 4, 1981; and from Attorney General Allain, dated May 3, 1983. In July, 1981, the Huffmans went to Jackson and conferred with two assistant attorney generals seeking assistance. They prepared posters with a picture and description of Christeen, went on television, sought and were given assistance from a missing child association. The posters were sent to law enforcement officials, and given to truckers. There was a petition to the Governor circulated and signed by a number of people requesting action be taken to arrest

 the person responsible for the child's kidnapping and for her return. The Grand Jury of Clay County returned a kidnapping indictment against the Mosleys.

 The Huffmans' efforts to secure assistance from the authorities were unavailing, and they never learned the location of the Mosleys until September, 1983. At that time Danny Ray Garrett, Mrs. Huffman's brother, telephoned her that he had received a call from Mrs. Mosley, and he gave Mrs. Huffman the telephone number. The Huffmans then took the telephone number to the sheriff's office. Mrs. Huffman testified the sheriff told her his office was handling the matter, and everything would be taken care of, and for her to keep her "nose out of it."

 The Huffmans then contacted Mr. Howard Gunn, an Aberdeen attorney. On September 29, 1983, a petition for a writ of habeas corpus was filed in the Chancery Court of Clay County. The petition alleges that Patsy K. Mosley and Billy Edward Mosley as respondents are subject to the jurisdiction of the Clay County Chancery Court, pursuant to Section 93-13-2 et seq. of the Mississippi Code (the Uniform Child Custody Jurisdiction Act), and can be served with a copy of the petition and writ at Mesa, Arizona. The petition concludes with a prayer for a writ directing respondents to appear and produce the child, or to otherwise show cause why custody should not be restored to the petitioner Mrs. Huffman. The chancellor on September 30, 1983, entered a fiat specifically citing the provisions of Section 93-23-1 et seq. of the Code, and set a hearing on the matter for October 7, 1983. The sheriff of Clay County was directed to take the body of Christeen and bring her forthwith before the Chancellor. Summons was also issued by the chancery clerk of Clay county to be served upon the respondents in Clay County. The sheriff of Clay County made a return on the process that the respondents were not found. *fn3

 Mrs. Huffman testified they were unable to get any assistance, either in having arrest warrants served in Arizona, or summons on the writ of habeas corpus. Mrs. Huffman, through Mr. Gunn, was able to get local counsel in Arizona. The services of Mr. Jeremy Butler of the law firm Lewis and Roca of Phoenix were secured. In October, 1983, Mr. and Mrs. Huffman flew to Phoenix and were met at the airport by Mr. David Lee Titterington of this law firm. The law firm apparently prepared a petition for custody in the state court of Arizona. *fn4

 The first address given the Huffmans proved to be a ball park.

 The final order of the Arizona court is the only record of what transpired in that state court, except for the testimony of the Huffmans in the Clay County court. According to them Christeen was taken into custody by the authorities, but Mrs. Mosley produced a copy of the July, 1981, Texas decree. It was then that the Huffmans first learned there had been any judgment rendered on the Texas proceeding. When she produced the Texas decree, the child was returned to Mrs. Mosley. Mr. Huffman telephoned the district attorney's office in Starkville about the kidnapping warrant. The Arizona trial court proceedings were continued, apparently due to the impact of the Texas decree.

 The Huffmans returned to Arizona in the early part of 1984. She testified she was then told if she did not sign a custody agreement her attorneys had worked out she would never see her child again. *fn5

 Mrs. Huffman testified as follows:

 As I started to say, I was told if I didn't sign it I wouldn't see Christie. I was told that I would not ever see her again. I love that kid. I gave life to that kid. [R.63]

 Whatever Mrs. Huffman signed was not introduced into evidence, but a certified copy of the Superior Court of Maricopa County, Arizona, Stipulated Order of April 9, 1984, was introduced. It is as follows:

 Pursuant to the Stipulation of the parties announced in open Court on March 1, 1984,

 IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

 I. This Court has jurisdiction of the subject matter of this proceeding and over the parties inasmuch as Christeen Michelle Owens has resided in Maricopa County, State of Arizona, for more than two years.

 II. The custody of Christeen Michelle Owens is hereby awarded to her maternal grandmother, Patsy K. Mosley, subject to the visitation rights set forth herein awarded to the child's mother, Virginia Carol Huffman:

 A. At any time that the mother is in Maricopa County, state of Arizona, the mother shall have the right to visit with the child at any reasonable time and place.

 B. Commencing on or about June 1, 1984 and for each summer recess thereafter, the mother shall have visitation rights at her home in the State of Mississippi or such other place that she may be residing. The visitation rights shall commence three days after the last day of school before the regular school summer recess which shall continue for three weeks thereafter. The period of visitation shall be increased by one week each summer thereafter [sic] commencing the summer of 1985 until reaching six weeks. The child shall travel by coach class airline ticket to Memphis, Tennessee or such other place as the parties shall mutually agree upon. The expense of round trip air fair shall be paid in advance, the child may travel unaccompanied. In the event the travel is by other means of transportation, then the child shall be accompanied by an adult but respondent, Patsy K. Mosley, shall provide equivalent funds of the airfare toward the transportation costs.

 C. The visitation rights during the Christmas holidays shall include the right of the child to travel to the mother's residence two days after the last day of school before the Christmas holiday and shall extend for seven days. Petitioner, Virginia Carol Huffman, shall be responsible for the round trip air fare for such visitation and the other terms and conditions of the travel regarding summer visitation shall apply. *fn6

 In June, 1984, Christeen came to Mississippi, and Mrs. Huffman on July 10, 1984, filed a petition in the Chancery Court of Clay County for custody of her child, alleging in summary the facts above related, that she agreed to the Arizona stipulation because of the refusal of the law enforcement authorities to help her, and after being told any custody would be subject to change.

 On July 12, 1984, Ms. S. Allan Alexander filed a petition for a writ of habeas corpus in the Chancery court of Clay County on behalf of Mrs. Mosley, and made

 oath to it. She attached a copy of the Arizona order to the petition. By agreement of the parties, both petitions were ...


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