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Irle v. Foster

Court of Appeals of Mississippi

November 12, 2013

DENISE J. IRLE APPELLANT
v.
PATTY FOSTER AND LAVIRL FOSTER APPELLEES

DATE OF JUDGMENT: 03/14/2012

PRENTISS COUNTY CHANCERY COURT HON. TALMADGE D. LITTLEJOHN JUDGE.

ATTORNEY FOR APPELLANT: JOHN A. FERRELL.

ATTORNEY FOR APPELLEES: GREG E. BEARD.

BEFORE GRIFFIS, P.J., MAXWELL AND FAIR, JJ.

MAXWELL, J.

¶1. Determining child custody is among the most difficult decisions our chancellors must make. And our appellate review of custody decisions is narrow—we will only reverse if the chancellor applied incorrect legal standards or his factual findings were manifestly wrong or clearly erroneous.

¶2. Here, the chancellor made the difficult decision that it was in the best interest of a child for her grandparents to be awarded custody, instead of her mother, who was her sole surviving parent. He arrived at this conclusion by applying the correct legal standard for a custody determination between a parent and grandparents—first, determining the natural- parent presumption had been lost and, second, conducting an on-the-record analysis of the Albright factors.[1]

¶3. While the mother challenges the chancellor's factual findings regarding her drug abuse, sexual relationships, and parenting skills—findings that led him to conclude she had not only lost the natural-parent presumption but also that custody should be awarded to the grandparents—we cannot say his findings were manifestly wrong or clearly erroneously. Though the mother presented conflicting evidence, the chancellor found much of this evidence was not credible. As it was the role of the chancellor to make credibility findings and weigh the evidence as he saw best, and as it is not the role of this court to second guess custody determinations absent clear error, we affirm the chancellor's judgment awarding custody to the grandparents.

Background

¶4. The mother in this case is Denise Irle. The grandparents are Patty and Lavirl Foster. The Fosters' son, David, fathered two[2] of Irle's four children: Britney, born July 1999; and Nathaniel ("Chase"), born July 2002. David, who never married Irle, had been Britney and Chase's primary caretaker. But when Britney was ten and Chase was eight, David died. And Britney and Chase went to live with Irle.

¶5. A year and a half later, the Fosters petitioned for custody of both children. Before the chancellor ruled on their petition, they reached an agreement with Irle—they would be granted custody of Chase, and Irle would be granted custody of Britney. And the chancellor entered an agreed order to that effect.

¶6. But the very next month, something happened that prompted the Fosters to ask the chancellor to award them custody of Britney too. They learned Britney had been removed from Irle's care by the Department of Human Services (DHS). At an emergency hearing, the Fosters were granted temporary custody of Britney. A guardian ad litem (GAL) was also appointed. After a final custody hearing, the Fosters were granted permanent custody of Britney, in addition to Chase.[3]

¶7. Irle timely appealed. She challenges the chancellor's determinations (1) that she lost her natural-parent presumption and (2) that it was in Britney's best interest that the Fosters be awarded custody.

Discussion

¶8. In reviewing Irle's appeal, we have kept in mind our "narrow" standard of review in child-custody cases. Hamilton v. Houston, 100 So.3d 1005, 1008 (¶7) (Miss. Ct. App. 2012). We will reverse a chancellor's decision only if he "applied an improper legal standard" or "made findings that [w ere] manifestly wrong or clearly erroneous[.]" Id. (citing Mabus v. Mabus, 847 So.2d 815, 818 (¶8) (Miss. 2003)). And here, we cannot say that the chancellor did either.

I. Applying the Threshold Test

¶9. Irle's first argument is that the chancellor failed to apply the correct law. Because the Fosters asked that the previous agreed order be "modified" to give them custody of Britney in addition to Chase, Irle asserts the chancellor had to first apply the test for custody modification—the material-change-in-circumstances test. And because the chancellor did not apply this test, Irle asks us to find reversible error.

¶10. But our supreme court has made clear that "[t]he principle that there must be a material change of circumstances which adversely affects a child's welfare before a custody decree may be modified only applies between parents of the child." Mabus, 847 So.2d at 819 (¶17) (emphasis added) (quoting Thomas v. Purvis, 384 So.2d 610, 612-13 (Miss. 1980)). Despite the style of the Fosters' petition, this case does not involve custody modification between parents. So the material-change-in-circumstances test does not apply.

¶11. Instead—as the chancellor correctly recognized—the threshold test for changing custody from a parent to a third-party, such as grandparents, was whether the grandparents had overcome the legal presumption that it was Britney's best interest for her sole parent to have custody. See id. Only then could the chancellor conduct an Albright analysis to determine whether it is in Britney's best interest for her ...


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