November 18, 2014
JAMES WILSON, APPELLANT
PEARLEAN DAVIS, APPELLEE
OF JUDGMENT: 07/01/2013.
FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT. TRIAL
JUDGE: HON. PATRICIA D. WISE. TRIAL COURT DISPOSITION:
PRIMARY CUSTODY OF MINOR CHILD AWARDED TO APPELLEE;
VISITATION AWARDED TO APPELLANT; JOINT LEGAL CUSTODY AWARDED
TO APPELLANT AND APPELLEE.
APPELLANT: FELECIA PERKINS, JESSICA NICOLE AYERS.
DAVIS, APPELLEE, Pro se.
P.J. LEE, C.J., ISHEE, CARLTON, MAXWELL AND FAIR, JJ.,
CONCUR. BARNES AND JAMES, JJ., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING,
NATURE OF THE CASE: CIVIL - CUSTODY
This case involves a child-custody dispute between the
child's natural father and the maternal grandmother. The
chancellor found that the natural-parent presumption had been
rebutted and that it was in the best interest of the child to
live with her grandmother. We find no error and affirm.
Concetter Davis was the mother of two children. Ka'Nyla
(" Ka" ) was born in 2001. Sha'Nyla M. Wilson
(" Sha" ) was born on April 20, 2003.
This action began as a paternity and custody dispute between
Concetter and James Wilson. James was adjudged to be
Sha's natural father. Concetter was awarded custody, and
James was awarded visitation.
Concetter died in 2011. When Concetter's relatives would
not return Sha to James, he filed a petition for modification
and sought sole legal and physical custody of Sha. The
chancellor entered an order that awarded the primary physical
custody of Sha to Pearlean Davis, Sha's maternal
grandmother. The chancellor also awarded James liberal
In the decision, the chancellor did not treat the issue as an
initial custody dispute between a natural parent and
grandparent. Instead, the chancellor considered the motion as
a modification of child custody based on the prior custody
determination between Concetter and James.
The judgment was appealed and assigned to this Court. We
reversed the judgment and remanded the case for the
chancellor to make a determination of whether the
naturalparent presumption had been rebutted. See
Wilson v. Davis, 111 So.3d 1280, 1283 (¶ 11)
(Miss. Ct.App. 2013).
On remand, the chancellor found that the natural-parent
presumption had been overcome and applied an
Albright  analysis. The chancellor entered a
judgment that ruled it was in Sha's best interest to
remain in Pearlean's custody. James appeals the
In child-custody cases, this Court will reverse the
chancellor's judgment only if the findings are manifestly
wrong or clearly erroneous, or an improper legal standard was
applied. Mabus v. Mabus, 847 So.2d 815, 818 (¶
8) (Miss. 2003).
We begin our review by noting that the appellee did not file
a brief in this case. The Mississippi Supreme Court has ruled
that the " [f]ailure of an appellee to file a brief is
tantamount to a confession of error and will be accepted as
such unless the reviewing court can say with confidence,
after considering the record and brief of the appealing
party, that there was no error." Sanders v.
Chamblee, 819 So.2d 1275, 1277 (¶ 5) (Miss. 2002).
We have reviewed the record and the appellant's brief,
and we can say with confidence that the chancellor did not
commit error. Therefore, we do not consider the
appellee's failure to file a brief a confession of error.
Whether the natural-parent presumption was
In a child-custody determination between a natural parent and
a third party, Mississippi law presumes that it is in the
best interest of the child for the natural parent to have
custody. Lucas v. Hendrix, 92 So.3d 699, 705-06
(¶ 17) (Miss. Ct.App. 2012) . This is because "
[g]randparents have no legal right [to] custody of a
grandchild, as against a natural parent." Lorenz v.
Strait, 987 So.2d 427, 434 (¶ 41) (Miss. 2008).
In Smith v. Smith, 97 So.3d 43, 46 (¶ 9) (Miss.
2012), the Mississippi Supreme Court held that " [t]he
natural-parent presumption can be rebutted by a clear showing
that (1) the parent has abandoned the child; (2) the parent
has deserted the child; (3) the parent's conduct is so
immoral as to be detrimental to the child; or (4) the parent
is unfit, mentally or otherwise, to have custody." The
court has also ruled:
In a custody case involving a natural parent and a third
party, the court must first determine whether through
abandonment, desertion, or other acts demonstrating unfitness
to raise a child, as shown by clear and convincing evidence,
the natural parent has relinquished his right to claim the
benefit of the natural-parent presumption. If the court finds
one of these factors has been proven, then the presumption
vanishes, and the court must go further to determine custody
based on the best interests of the child through an
on-the-record analysis of the Albright factors.
In re Dissolution of Marriage of Leverock & Hamby,
23 So.3d 424, 431 (¶ 24) (Miss. 2009).
Here, the chancellor found abandonment and immoral conduct.
The chancellor did not find that James deserted Sha or was
unfit. James challenges these findings.
First, James argues that the evidence did not support the
finding that he abandoned Sha. James points to the fact that
he filed a complaint, in 2007, for an order of filiation to
confirm and assert
his role as Sha's biological father. Based on this
earlier action, the chancellor found that James was Sha's
father and granted him visitation rights.
In Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.
1992), the court defined abandonment as:
Any course of conduct on the part of a parent evincing a
settled purpose to forgo all duties and relinquish all
parental claims to the child. It may result from a single
decision by a parent at a particular point in time. It may
arise from a course of circumstances. The test is an
objective one: whether under the totality of the
circumstances, be they single or multiple, the natural parent
has manifested his severance of all ties with the child.
(Citing Bryant v. Cameron, 473 So.2d 174, 178-79
(Miss. 1985)). Here, the chancellor found:
[James] took no interest in the minor when she was born.
Undisputed testimony reflects that the baby and Mother
actually went home from the hospital with a man named
Sylvester Crump. He is the father of Concetter's
daughter, Ka. When Concetter went into labor[,] Crump took
her to the hospital. Further, [James] played no role in the
birth, pregnancy or delivery of Sha. Additionally, and
undisputed, [Pearlean] testified that [James] showed, at
particular points in time, no interest in the child's
life and that it took three years before he actually got
involved. [James] stated to the Guardian ad Litem ("
GAL" ), Attorney Debra M. Giles, that he has always been
in [Sha]'s life, but the facts do not support this
assertion. Even now, the minor child reports that she
considers Crump her dad and only calls [James] dad when she
is in his presence. While balancing both the testimony and
[James]'s statement to the GAL, the [c]ourt is convinced
that at different stages of the child's early years,
[James] clearly abandoned [Sha] and for[sook] his parental
The evidence at trial established that James is involved in
Sha's life. He visits her at school and participates in
activities, such as birthday parties. James attends
parent-teacher conferences and talks with Sha's teachers.
James certainly takes an active role in Sha's life.
Hence, the chancellor's finding that James has abandoned
Sha is not supported by substantial evidence.
Next, we consider the chancellor's finding that
James's conduct was so immoral that he was unfit to have
custody. The chancellor found that James's past and
present relationships have negatively influenced his ability
to properly parent Sha. The chancellor stated:
The point that the court is making in regards to
[James]'s past and present relationships is that: (1)
[James] consistently dates and marries wom[e]n much younger
than him whom he relies on solely to cook, clean and care for
him; [and] (2) [James] has consistently had overlapping
relationships with these younger women.
The chancellor also addressed James's current home
environment. James's wife, Annette Wilson, is the mother
of three children. Two of these children have anger problems.
At trial, Annette testified that the boys see a therapist
because of their anger. The chancellor found that neither
Annette nor James appreciates the seriousness of the
boys' anger and that they lack awareness of or concern
for the potential danger Sha could be exposed to. Further,
the chancellor found that because James and Annette have only
been married one year, Sha and Annette share no " real
[¶17] The chancellor addressed the family
dynamic prior to and after Concetter's death. At one
point, Annette and Concetter got into a physical altercation.
Because Annette is a homemaker, Sha would have to rely on
Annette solely for all of her needs while James is at work.
Because of this, the chancellor found that if Sha lived with
James, the situation could be detrimental to her.
The evidence clearly indicated that James has had multiple
extramarital affairs. When James met Concetter, he was still
married. James and Concetter lived together between 2005 and
2006. Sometime after 2006, James met another woman and
married her, and they divorced in 2009. Prior to this
divorce, James met and started to date Annette.
Although we have determined that the evidence did not support
the finding that James had abandoned Sha, we find that there
was sufficient evidence to support the chancellor's
finding that James's conduct is so immoral that he is
unfit to have custody. See Smith, 97 So.3d
at 46 (¶ 9). Accordingly, we find that the chancellor
was correct to hold that the natural-parent presumption was
Whether the chancellor erred in the Albright
Because we have found " one of these factors has been
proven, then the presumption vanishes, and the court must go
further to determine custody based on the best interests of
the child through an on-the-record analysis of the
Albright factors." In re Dissolution of
Marriage of Leverock & Hamby, 23 So.3d at 431 (¶
In child-custody cases, " the polestar consideration is
in the best interest of the child." Sellers v.
Sellers, 638 So.2d 481, 485 (Miss. 1994). In
Albright v. Albright, 437 So.2d 1003, 1005 (Miss.
1983), the court set forth the factors to be considered by
the chancellor to determine child custody:
[A]ge of the child; health [ ] and sex of the child; a
determination of the parent that has had the continuity of
care prior to the separation; which has the best parenting
skills and which has the willingness and capacity to provide
primary child care; the employment of the parent and
responsibilities of that employment; physical and mental
health and age of the parents; emotional ties of parent and
child; moral fitness of parents; the home, school and
community record of the child; the preference of the child at
the age sufficient to express a preference by law; stability
of home environment and employment of each parent[; ] and
other factors relevant to the parent-child relationship.
Here, the chancellor conducted an Albright analysis.
After considering each factor, the chancellor determined that
it was in Sha's best interest to remain in Pearlean's
primary physical custody. James argues that the chancellor
erred in this analysis. He contends that the majority of the
factors favor him rather than Pearlean. Pearlean failed to
file a reply brief on appeal.
The chancellor found that the following factors favored
Pearlean: age, health, and sex of the child; continuity of
care prior to the separation; best parenting skills;
emotional ties of parent and child; moral fitness of the
parents; home, school, and community record of the child; and
stability of the home environment. The chancellor found that
the only factor that favored James was the " employment
of the parent" factor. The chancellor found that the
" physical and mental health and age of the
parents" factor equally favored both parties. Also,
chancellor found that Sha's preference was to live with
Pearlean, we will not consider this factor because Sha was
not of the legal age for her preference to be considered. See
Miss. Code Ann. § 93-11-65 (Rev. 2013).
The chancellor made several findings that influenced the
decision. Sha had been in Concetter's physical custody
throughout her life. Pearlean had helped Concetter support
and raise Sha. Although James and Pearlean were willing to
provide primary child care, Pearlean has the ability to
devote her entire life and time to raise Sha. Pearlean has
significant parenting skills because she has raised other
children, including Ka. Sha has a much closer bond with
Pearlean than with James. Pearlean can provide an overall
better quality of life and home environment for Sha. Sha told
the guardian ad litem that she does not like going to visit
Our review of the record indicates that there was substantial
evidence to support the chancellor's analysis of the
Albright factors. Our role is to determine whether
there was an evidentiary basis to support the
chancellor's findings. Having done so, we cannot find the
chancellor erred in her Albright analysis. We affirm
the chancellor's judgment that awarded primary custody of
Sha to Pearlean.
THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
C.J., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES
AND JAMES, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. ROBERTS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY IRVING, P.J.
As the majority correctly notes, Pearlean failed to file an
appellee's brief in this case. And the " failure of
an appellee to file a brief is tantamount to a confession of
error and will be accepted as such unless the reviewing court
can say with confidence, after considering the record and
brief of the [appellant,] that there was no error."
Sanders v. Chamblee, 819 So.2d 1275, 1277 (¶ 5)
(Miss. 2002). Because I cannot say with confidence that the
chancery court committed no error, I take Pearlean's
failure to file a brief as a confession of error. I
respectfully dissent from the majority's determination
that an appropriate evidentiary basis exists to support the
chancery court's award of primary custody to Pearlean.
Instead, I would reverse the chancery court's award of
primary custody to Pearlean, render a judgment awarding James
primary custody of his daughter Sha, and remand for the
chancery court to determine appropriate grandparent
visitation for Pearlean.
Mississippi law mandates a presumption that it is in the best
interest of the child for a natural parent to retain custody
over a third party. However, there are four ways for a third
party to rebut the natural-parent presumption. See
Davis v. Vaughn, 126 So.3d 33, 36-37 (¶ 10)
(Miss. 2013). The third party must show, by clear and
convincing evidence, that " (1) the parent has abandoned
the child; (2) the parent has deserted the child; (3) the
parent's conduct is so immoral as to be detrimental to
the child; or (4) the parent is unfit, mentally or otherwise,
to have custody." Id.
Clear and convincing evidence " produces in the mind of
the trier of fact a firm belief or conviction as to the truth
allegations sought to be established, evidence so clear,
direct and weighty and convincing as to enable the
fact-finder to come to a clear conviction, without hesitancy,
of the truth of the precise facts of the case."
Parra v. Parra, 65 So.3d 872, 878 (¶ 17) (Miss.
Ct.App. 2011) (quoting Niebanck v. Block, 35 So.3d
1260, 1264 (¶ 10) (Miss. Ct.App. 2010)). Additionally,
it is well settled that " [g]randparents have no legal
right [to] custody of a grandchild, as against a natural
parent." Lorenz v. Strait, 987 So.2d 427, 434
(¶ 41) (Miss. 2008).
This is not the first instance that this Court has reviewed
this case. Following Concetter's death, James immediately
filed a petition for custody of his daughter. Wilson v.
Davis, 111 So.3d 1280, 1281-82 (¶ 4) (Miss. Ct.App.
2013). The chancery court, applying an incorrect legal
standard, awarded Pearlean custody of Sha, even after noting
James's " genuine fatherly love for [his]
daughter[.]" Id. at 1282 (¶ 5). In 2013,
this Court found that the chancery court improperly
considered the proceedings a custody modification instead of
a custody determination between a natural parent and a
grandparent, and we remanded the case to chancery court for
it to determine whether the natural-parent presumption had
been rebutted by clear and convincing evidence. Id.
at 1282-83 (¶ ¶ 10-11).
Upon remand, the chancery court did not hold a new hearing or
take new evidence in the matter. It modified its original
opinion and found that the natural-parent presumption had
been overcome because James had abandoned Sha and he had
engaged in immoral conduct; it then applied an
Albright analysis; and it found that Pearlean should
retain custody of Sha because it was in Sha's best
I take issue with the chancery court's finding that the
natural-parent presumption had been overcome, by clear and
convincing evidence, based on James's abandonment of Sha
and his immoral conduct. The majority states, in paragraph
eight: " We have reviewed the record and the
appellant's brief, and we can say with confidence that
the chancellor did not commit error." Yet the majority
later determines the chancery court erred in its finding that
James abandoned Sha. The majority concludes, in paragraph
fourteen, that the chancery court's " finding that
[James] has abandoned Sha is not supported by substantial
evidence." I wholeheartedly agree.
In addition, I submit that the chancery court also erred in
finding that James's conduct was so immoral that it would
be detrimental to Sha for him to have custody of her. In
support of its finding that James's conduct was immoral,
the chancery court cited to James's relationships to
suggest that his propensity to date younger women and commit
adultery would influence his ability to parent Sha. This is
the primary example relied upon to demonstrate James's
immorality and unfitness to parent Sha. James has been
married a total of three times: the first for twenty-five
years, a second for approximately four years, and finally to
his current wife since 2011. There is no indication that
James and his current wife have separated or divorced since
the initial hearing in this case. I cannot find that the
chancery court's reliance on this evidence is clear and
convincing evidence of immorality and unfitness such that the
natural-parent presumption should be overcome.
The chancery court cited to several other examples of
problems with awarding James custody; however, these other
examples, mainly involving animosity between the families and
extended family, are more suited for an Albright
analysis with little or no impact on James's morality
or fitness. For example, the chancery court found that the
home environment with James would be dangerous to Sha based
on James's stepson's anger issues, and that James
lacks " awareness or . . concern . . . [for] the
potential danger [Sha] could be exposed [to]" based on
the anger problem. But, as the chancery court acknowledged,
the stepson's anger issues have not been violent or
directed at Sha, and the stepson is receiving counseling for
his anger issue. Again, I cannot see how a stepson's
mental-health issues affect James's morality or fitness
to parent Sha. The chancery court also stated that Sha has
experienced numerous " disruptive patterns of
behavior" based on the animosity between Concetter,
James, and their families, including James's current
wife, who fought with Concetter prior to Concetter's
death. And there was concern that James's current wife
might not properly care for Sha; however, there is no
evidence in the record to support this concern. While it is
true that there has been much animosity between family
members since Sha's birth, this, in and of itself, is not
sufficient to show that James, himself, was immoral or unfit
to parent Sha.
Further, I cannot reconcile the chancery court's finding
that James was so immoral and unfit to parent Sha that the
natural-parent presumption was overcome, while at the same
time awarding him joint legal custody and liberal visitation
with Sha, including extended weekend, summer, spring-break,
and holiday visitation. Moreover, the chancery court adopted
the recommendation in the GAL's report that Pearlean
retain custody of Sha, but ignored the GAL's statement
that: " Clearly, case law favors [James] having custody
For the above reasons, I submit that the chancery court erred
in finding that the natural-parent presumption had been
rebutted. Simply stated, there was no clear and convincing
evidence of James's immorality or unfitness to parent
Sha. Therefore, I would reverse the chancery court 's
judgment and render a judgment awarding James custody of his
daughter Sha. Since Pearlean intervened in James's
petition for custody and requested to be awarded
grandparent-visitation rights after the death of her daughter
Concetter, I would remand this matter to the chancery court
for it to determine appropriate grandparent visitation for
P.J., JOINS THIS OPINION.
 Albright v. Albright, 437 So.2d
1003, 1005 (Miss. 1983).