COURT FROM WHICH APPEALED: PRENTISS COUNTY CHANCERY COURT
The opinion of the court was delivered by: Prather, Chief Justice, For The Court:
DATE OF JUDGMENT: 02/03/95
TRIAL JUDGE: HON. JOHN C. ROSS JR.
NATURE OF THE CASE: CIVIL - CUSTODY
MOTION FOR REHEARING FILED:
¶1. The present case centers around the legal rights of Larry Joe Humphrey, the natural unwed father *fn1 of a child born to a woman in an existing marriage. Specifically, this Court is called upon to determine what legal rights to notice, if any, Humphrey may have had with regard to an adoption of the child by the child's grandparents. This Court holds that Humphrey was entitled to no notice under the statutory or common law of this State and that Humphrey's constitutional rights were similarly not violated in the present case. This Court accordingly holds the adoption of the minor child to be valid in spite of the lack of notice granted to Humphrey.
¶2. This Court also finds that, given the validity of the adoption, the trial court was correct in refusing to divest the adoptive parents of custody of the minor child. The facts of the case, which include allegations of sexual abuse by a neighbor, do not warrant a termination of the parental rights of the adoptive parents.
II. STATEMENT OF THE FACTS AND CASE
¶3. Tryxie Lynn Pannell ("Tryxie") was born on January 23, 1987 to Rossion S. Gibson ("Rossion"), who, at the time of the girl's conception and birth, was married to William T. Gibson ("Gibson"). Gibson, however, is not the girl's biological father. The parties all agree that Tryxie's natural father is Larry Joe Humphrey, Appellant herein, who had an adulterous affair with Rossion. On August 27, 1987, a Petition for Adoption was filed by J.R. Pannell and his wife, Winifred P. Pannell, the maternal grandparents of Tryxie, and consented to by Rossion, the natural mother, and Gibson, the presumptive father. No notice of the adoption was granted to Humphrey, and a final decree of adoption was entered that same day.
¶4. In the seven months between Tryxie's birth and adoption, Humphrey showed little inclination to support Tryxie, although he was aware of his paternity. Humphrey became aware of the adoption within a few months of its occurrence, but he did not contest this adoption for almost five years, when, in 1992, he challenged the adoption on jurisdictional grounds and sought custody of the child.
¶5. As a result of the petition filed by Humphrey, the Chancellor on June 8, 1992 entered an Agreed Decree which represented a voluntary agreement between the parties. The Decree recited that all relevant facts had been not known to the court in the adoption hearing, given that Larry Joe Humphrey had not been identified as the natural father of Tryxie. The Decree acknowledged, and all parties agree, that Humphrey was the biological father of Tryxie. The Decree further modified the Final Decree of Adoption "to the extent that Larry Joe Humphrey is recognized as the natural father of the minor child, and (his ) parental rights are not terminated." The Decree further granted Humphrey visitation rights with Tryxie, and, in return, Humphrey recognized the adoption of Tryxie by the Pannells and agreed to pay child support for Tryxie. No appeal was taken from this decree or from the original decree of adoption to the Pannells.
¶6. On August 14, 1992, the Chancellor and the parties entered an Agreed Order Concerning Visitation, which granted Humphrey greater visitation rights with Tryxie. These visitation rights were increased once again on September 18, 1992, pursuant to another Agreed Decree. No appeal was ever taken from any of these original or amended orders.
¶7. On July 20, 1993, the Pannells filed a complaint for modification requesting that the Chancellor "significantly restrict" Humphrey's visitation privileges with Tryxie, noting his criminal history, past drinking problems, and a recent arrest for assault on a police officer. Humphrey filed a counter-claim for modification of the former decree, requesting that Tryxie be placed under his custody on the grounds that he would provide a better home for the child. Humphrey notes the advanced ages of the Pannells *fn2 and cites their poor health and living conditions as grounds for the modification. He further notes that the grandparents occasionally leave Tryxie with her biological mother, whose living conditions and habits, he alleges, are a detriment to the child. On November 23, 1993, the Chancellor issued an order directing the Department of Human Services to perform home studies on the Pannell and Humphrey homes and further modifying the visitation schedule.
¶8. On April 19, 1994, a hearing was held regarding the parties' various complaints for modification, and the Chancellor found that the proof did not support a finding of a material change in circumstances. The Chancellor therefore concluded that the Pannells' motion for modification should be denied. With regard to Humphrey's counter- complaint, the Chancellor did allow Humphrey liberal visitation rights, and the Pannells were enjoined from allowing Tryxie to be in the unsupervised presence of Tryxie's natural mother and Mr. Gibson.
¶9. On a Saturday night in December, 1994, the Pannells allowed Tryxie to be under the care of her biological aunt and uncle, Selmer and Gary South. While Selmer was asleep, Gary, who was allegedly drunk and had been watching a pornographic movie, allegedly fondled Tryxie's genital area. Tryxie reported the incident to three of her schoolteachers and her principal, but none of these parties notified authorities about the complaint.
¶10. On December 16, 1994, Tryxie informed Humphrey's wife Glenda about the alleged incident, and Glenda notified the Prentiss County Department of Human Services that same day. A meeting was held between Tryxie, the Pannells, the Humphreys, and social services and law enforcement personnel, at which meeting the Pannells stated that they did not believe Tryxie's accusations against Gary South. Tryxie expressed her strong desire to live with the Humphreys, and the Pannells tried to persuade her to stay with them.
¶11. At the end of the meeting, Tryxie frantically resisted efforts to force her to return to the Pannells' home, according to Martha Hickman ("Hickman"), the social worker handling the case, who witnessed the incident. Following Tryxie's further resistance in the car, the Pannells eventually returned her to the Sheriff's office, whereupon she was placed under foster care by agreement. At a hearing, the Chancellor returned Tryxie to the Pannells' custody, but he ordered that she not be allowed to have contact with Gary South.
¶12. On December 22, 1994, Humphrey filed a complaint to set aside the adoption of Tryxie. He also sought contempt of court sanctions against the Pannells based on the Pannells' allegedly permitting Tryxie to be in the unsupervised presence of Tryxie's natural mother. In addition, Humphrey once again sought modification of custody, based on the alleged incident of sexual abuse, and he requested a temporary order removing Tryxie from foster care and placing her in his custody.
¶13. The Chancellor issued a temporary order on January 24, 1995, in which he ordered Tryxie returned to the custody of the Pannells. On February 8, 1995, the Chancellor issued a decree denying Humphrey's motion to set aside the Final Decree of Adoption, dismissing the contempt complaint against the Pannells, denying a modification in custody, and ordering Humphrey to pay an arrearage in child support. On March 6, 1995, Humphrey timely perfected a notice of appeal from the Decree of February 8, 1995 to this Court. On March 10, 1995, the Chancellor issued a decree prohibiting the Pannells from allowing Tryxie to have "any contact with or be in the presence of Gary South until further orders of this Court."
WHETHER THE CHANCELLOR ERRED IN FAILING TO SET ASIDE THE ADOPTION FOR LACK OF JURISDICTION?
A. Did Humphrey, as an unwed putative father, have any right to notice of the adoption under the statutory and/or common law of this State ?
¶14. In determining whether Humphrey had a legal right to notice of the adoption, this Court first notes that, as an unwed father, Humphrey had no statutory rights whatsoever with regard to Tryxie's adoption. Miss. Code Ann. § 93-17-5 (1994), which requires that "parents" be made parties to the adoption proceedings, does not consider the father of an illegitimate child to be a "parent" for the purposes of the statute at all. The statute provides in part that:
[In] the case of a child born out of wedlock, the father shall not be deemed to be a parent for the purpose of this chapter, and no reference shall be made to the illegitimacy of such child.
Thus, § 93-17-5 expressly provides that the father of an illegitimate child is not a "parent" at all for the purposes of the adoption statutes. Both "parents" are entitled to notice of the adoption under Mississippi statutory law, but the father of an illegitimate child is denied the basic status of parent under the adoption statutes of this State. The constitutional implications of such provision are discussed infra, but, by clear dictate of statute, Humphrey was entitled to no notice under the adoption statutes of this State.
¶15. Humphrey cites two decisions of this Court, which, he contends, demonstrate that he had a right to notice of the pending adoption. Humphrey cites the cases of Krohn v. Migues, 274 So.2d 654, 657 (Miss. 1973) and Birindelli v. Egelston, 404 So.2d 322, 324 (Miss. 1981) for the proposition that "without inclusion of the natural father as a party, the Final Decree of Adoption is Void." Contrary to Humphrey's arguments, neither of ...