In the Matter of the ESTATE OF Justin Michael SMITH, Deceased: Halley Smith, A Minor By and Through Her Mother Holly Smith
Payln Mae SMITH, A Minor by and Through Her Mother and Next Friend, Amy ROLLINS.
Bradley Russell Boerner, attorney for appellant.
Steven Hiser Funderburg, Jackson, attorney for appellee.
¶ 1. Following a final order from the Chancery Court of Lincoln County that Halley Smith is not a wrongful-death beneficiary of Justin Smith, Halley appeals and
asks this Court to judicially declare that an in loco parentis child qualifies as a wrongful-death beneficiary under Mississippi Code Section 11-7-13. Halley argues that " [p]ublic policy and the best interests of Mississippi children demand that in loco parentis children should be included as wrongful death beneficiaries of their psuedo-parent."  Finding that an in loco parentis child does not qualify as a wrongful-death beneficiary, we affirm the trial court's judgment.
¶ 2. Justin Michael Smith, the decedent, married Holly Kyzar Smith in October 2000. Two months later, Holly gave birth to Halley Ellas Smith. Justin signed the birth certificate as Halley's father. For eight years, Justin supported Halley financially and actively participated in Halley's life. Justin also claimed Halley as a dependent on his tax returns for seven years. Halley lived with Justin and Holly for almost eight years.
¶ 3. Holly and Justin separated in 2007, and a complaint for divorce was filed. Unbeknownst to Holly, Justin sought a DNA test which established that Justin was not Halley's father. Holly questioned the results. As a part of the divorce proceeding, a subsequent DNA test  was ordered on September 25, 2008, that confirmed that Justin was not Halley's biological father. Separately, an additional DNA test on February 5, 2009 established that Joseph Montgomery, not Justin, was Halley's biological father. Thereafter, Justin's name was removed from Halley's birth certificate, and Montgomery was listed as Halley's biological father. Montgomery also was awarded visitation rights and ordered to pay child support. Justin died on July 19, 2009. At the time of his death, divorce had not been granted.
¶ 4. Holly was appointed administratrix of Justin's estate in January of 2010. Holly filed a petition to establish heirship, naming herself and only Payln Mae Smith, Justin's natural daughter, as Justin's known heirs. Holly made no claim that Halley was an heir of Justin. The chancery court, on April 6, 2010, entered an order, at Holly's behest, declaring that Holly and Payln were the sole heirs.
¶ 5. On September 22, 2011, Holly filed a Petition For Authority To Settle Doubtful Claims, on behalf of Palyn. The chancery court approved the settlement and directed the distribution of funds equally to Holly, individually, and Holly, as guardian of Palyn. On the very same day, without serving the parties the court had authorized to be released, Holly filed a Petition For Reconsideration Of Heirship Determination, stating that " [a]n issue has now arisen as to whether Halley Ellas Smith, a minor, is also an heir-at-law of decedent Justin Michael Smith. Specifically, Halley Ellas Smith was born on December 29, 2000, during the marriage of the Decedent and Holly Kyzar Smith (Petitioner), and was treated as the daughter of Justin Michael Smith." Holly's act of filing the petition for reconsideration after soliciting and obtaining authority to settle outstanding claims raises a host of other issues, as raised by the released parties, who intervened. However, as the trial court did not address these issues, and as its ruling was
otherwise dispositive, neither shall we. We examine only the judgments before us. The Court order under attack and presented to the trial court for reconsideration was the April 6, 2010, decree in which Holly and Palyn were declared to be Justin's sole heirs-at-law.
¶ 6. After the court appointed a guardian ad litem to represent Halley, Halley's guardian ad litem also filed a motion to reconsider the heirship determination of April 6, claiming that " Halley Smith is the in loco parentis child of Justin Smith, deceased, and should be adjudicated to be one of his heirs at law and wrongful death beneficiaries...." Subsequently, the chancery court held a hearing on the motions and entered an order finding that:
Halley is the in loco parentis daughter of Justin Smith; ... Halley is not the biological daughter of Justin Smith, as the presumption of paternity has effectively been rebutted; ... an in loco parentis child of a deceased individual does not stand as a wrongful death beneficiary of that deceased individual; therefore, Halley is not a wrongful death beneficiary of Justin.
¶ 7. Halley then filed another motion to reconsider the order denying reconsideration of the April 6 order, which the chancellor denied. In her appeal, she claims that " in loco parentis children should be included as wrongful-death beneficiaries of their pseudo-parent." The parties do not contest the chancellor's determination that Halley was an in loco parentis child of Justin. Instead, Halley invites this Court to judicially amend the wrongful-death statute to include in loco children as persons entitled to recover under Section 11-7-13. We decline.
STANDARD OF REVIEW
¶ 8. The issue before the Court is whether an in loco parentis child qualifies as a wrongful-death beneficiary under Mississippi's wrongful-death statute. Because this is an appeal from chancery court on an interpretation of a statute, the standard of review is de novo. Miss. Dep't of Transp. v. Allred, 928 So.2d 152, 154 (Miss.2006).
¶ 9. This Court has recognized the doctrine of in loco parentis for more than a century. Fortinberry v. Holmes, 89 Miss. 373, 42 So. 799, 799 (1907). ...