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Doe v. Doe

Court of Appeals of Mississippi

February 7, 2017

JANE DOE APPELLANT
v.
JOHN DOE APPELLEE

          DATE OF JUDGMENT: 02/24/2015

         MADISON COUNTY CHANCERY COURT, HON. CYNTHIA L. BREWER.

          ATTORNEYS FOR APPELLANT: JOHN G. HOLADAY ANDY STEWART.

          ATTORNEYS FOR APPELLEE: WILLIAM R. WRIGHT AMANDA JANE PROCTOR.

         EN BANC.

          LEE, C.J.

         ¶1. Jane Doe[1] appeals the termination of her parental rights by the Madison County Chancery Court. Finding error, we reverse and render.

         FACTS AND PROCEDURAL HISTORY

         ¶2. John and Jane Doe were divorced in 2009 on the ground of irreconcilable differences. They agreed to joint physical and legal custody of their sole minor child, who was born in 2007. On June 8, 2011, John petitioned the chancery court for a modification of custody, due to concerns regarding Jane's drug abuse. On January 18, 2012, after one of Jane's relapses, John moved for emergency relief without notice to Jane. The chancellor granted the motion and temporarily awarded sole legal and physical custody of the child to John.

         ¶3. On August 21, 2012, the chancellor heard John's petition for modification. Sixteen days before the hearing, Jane's attorney's motion to withdraw was granted, and Jane appeared pro se at the hearing. The chancellor ruled from the bench, awarding John full custody. In her bench ruling, the chancellor gave Jane thirty days-until September 20-to provide proof of employment and two clean drug tests in order to receive supervised visitation with the child. John's counsel prepared the order, and filed it on September 21, 2012. Jane did not submit drug tests or proof of employment to the court by September 20, 2012.

         ¶4. John filed his original motion to terminate Jane's parental rights on January 29, 2013, and later amended the motion to include a petition for adoption of the child by Laura, his wife. Jane's counsel entered an appearance fourteen days before the hearing was held on July 15, 2014. When it became apparent that the parties would be unable to present all of the testimony in one day, the chancellor continued the hearing until August 11, 2014. At the hearing, there was extensive testimony about Jane's prior drug history and arrests. There was also testimony about how John and Jane abused drugs together during their marriage and how, with the child in the car, John was arrested for driving under the influence and possession of drug paraphernalia.

         ¶5. In addition to the testimony concerning Jane's drug use, there was also undisputed testimony that Jane was currently clean and enrolled in Alternatives for Life and Recovery, a drug-rehabilitation program. Jane had enrolled in the program in December 2013 and had advanced in it before the hearing date. The record shows that she passed a number of drug tests before the first day of the hearing in July 2014. She was also clean from any illegal drugs for the second day of the trial in August 2014.

         ¶6. The testimony at trial also undisputedly showed that Jane was employed with her family business and lived in an apartment on her parents' property. And the record does not include any direct evidence that Jane ever abused drugs around the child when he was in her custody. She testified that whenever she used drugs, the child was with her mother or with John. Aside from an incident where the child accidentally cut himself with a razor in the bathroom, which was not alleged by any party to be Jane's fault, there was no evidence that the child ever suffered any physical harm when he was in Jane's custody.

         ¶7. The chancellor entered an order terminating Jane's parental rights on February 25, 2015. Jane's attorney did not receive notice of the judgment from the clerk's office until March 27, 2015. He then filed a motion to reopen the time for appeal, and the chancery court granted the motion without opposition from John's attorney. Jane noticed her appeal on April 16, 2015. The next day, the chancellor entered a judgment of adoption.

         STANDARD OF REVIEW

         ¶8. "The chancellor's findings of fact concerning the termination of parental rights are viewed under the manifest error/substantial credible evidence standard of review." W.A.S. v. A.L.G., 949 So.2d 31, 34 (¶7) (Miss. 2007). "Therefore, we examine whether credible proof exists to support the chancellor's finding of fact by clear and convincing evidence." Id. (citation omitted). "State statutes providing for the termination of parental rights are subject to strict scrutiny and [c]ourts may not add to the enumerated grounds." Chism v. Bright, 152 So.3d 318, 322 (ΒΆ13) (Miss. 2014). Where "a chancellor misapprehends ...


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