FRANK HARTLEY, JR.
JOHN D. WATTS AND LENITA S. WATTS
OF JUDGMENT: 12/23/2014
COUNTY CHANCERY COURT, TRIAL JUDGE: HON. EDWARD E. PATTEN,
COURT ATTORNEYS: W. BRADY KELLEMS JOSEPH PRESTON DURR CHELI
KELLEMS DURR DOUGLAS LAMONT TYNES, JR. DURWOOD J. BREELAND
ATTORNEY FOR APPELLANT: DOUGLAS LAMONT TYNES, JR.
ATTORNEYS FOR APPELLEES: W. BRADY KELLEMS JOSEPH PRESTON DURR
CHELI KELLEMS DURR
WALLER, C.J., COLEMAN AND CHAMBERLIN, JJ.
WALLER, CHIEF JUSTICE.
Frank Hartley Jr. appeals the final judgment of the Chancery
Court of Lincoln County terminating his parental rights to
his two biological children, A.B. and B.H. and granting an
adoption to John D. and Lenita S. Watts. Finding that the
judgment is supported by clear and convincing evidence, we
AND PROCEDURAL HISTORY
Frank Hartley Jr. enlisted in the United States Air Force
directly after graduating high school in 2003. In early 2004,
after completing his training, he was stationed at Eglin Air
Force Base located between Pensacola and Panama City,
Florida. On August 21, 2004 he married Amanda Fullmer.
During late 2005, Hartley and Remy Bartenbach met and had an
affair resulting in Bartenbach's pregnancy. Hartley and
Bartenbach did not speak during much of the pregnancy. In
February 2006, Hartley and Fullmer divorced as a result of
Hartley's affair with Bartenbach. Bartenbach gave birth
to A.B. on August 14, 2006. Bartenbach contacted Hartley
shortly after the birth and asked him to come and meet his
child. Hartley began visiting regularly Bartenbach at her
home in Destin, Florida, following the birth. Beginning in
January 2007, Hartley and Bartenbach moved in together, and
he provided support for her and the young child. Also during
this time, Bartenbach became pregnant with a second child by
Earlier in 2006, Hartley had had a sexual encounter with a
fourteen-year-old girl whom he met online and invited to his
house. After the girl reported the incident to her parents,
an investigation began that lasted until August 16, 2006,
when Hartley was arrested. In January 2007, the State of
Florida offered a plea deal in which Hartley would plead
nolo contendere to a charge of lewd and lascivious
battery with a person over twelve but under sixteen years of
age and serve only two years in prison with four years'
probation. Hartley accepted the deal and in April 2007,
Hartley pleaded no contest and received a two-year prison
While he was incarcerated, Hartley was discharged from the
Air Force under less than honorable circumstances. During
this time, Bartenbach took A.B. to visit Hartley in prison a
couple of times. Hartley claims that, before he was
incarcerated, he left Bartenbach money in a checking account
as support but could not recall the exact amount. Hartley
also testified that Bartenbach and A.B. stayed in the
apartment they had lived in together for about two months
before he was incarcerated. On November 26, 2007, B.H. was
born out of wedlock to Bartenbach. Following this event,
visits to the prison were no longer feasible. In February
2008, Bartenbach and the two children moved to Ocean Springs,
Prior to being released from prison, Hartley was required to
provide Florida probation authorities with proof of residence
and employment and register as a sex-offender. Since
Bartenbach had moved to Mississippi and had begun to sever
ties to Hartley and his family, Hartley decided he would
return to Pennsylvania, where he had family ties. On January
2, 2009, Hartley was released from prison and moved in with
his grandfather in Pennsylvania. Hartley testified that he
worked as an electrician with his uncle as soon as he arrived
in Pennsylvania and eventually found full-time employment
with Timberline Packaging around February 2009.
Following his release, Hartley maintained phone contact with
his children as much as he could, given Bartenbach's
animosity toward him. In August 2009, the minor children were
taken into custody by Jackson County Department of Human
Services. Hartley sought custody of his children but could
not attend court in Jackson County as a result of his
probation. In addition to hiring counsel to represent him in
the youth court, he paid for a DNA test to prove paternity.
Hartley also invoked the Interstate Compact on the Placement
of Children (ICPC) which would allow his children to be
placed with him out of the State of Mississippi. He also
sought visitation rights. However, he was denied both.
Bartenbach never sought custody of her children after they
were removed and eventually signed a Surrender of Parental
Rights form on January 17, 2013, and termination of her
parental rights was ordered on June 2, 2014.
In December of 2009, A.B. and B.H. were placed with foster
parents, Lenita and John Watts, in Lincoln County,
Mississippi. The Wattses provided care for the children for
twenty-two months from approximately December 2009 to October
2011. The Wattses received no support from Hartley or
Bartenbach during this period and decided within the first
six months of the placement that they would pursue adoption.
Following their unexpected and unexplained removal from the
Wattses' home, the children were placed in at least four
other foster homes and, in at least one of these, allegations
of sexual abuse were raised.
In January of 2010, Hartley was incarcerated for violating
his probation on two counts, (1) curfew violation and (2)
unsupervised contact with minors. Following his arrest, he
was extradited to Florida, where he pleaded guilty. In
September that same year, he was released from prison and
returned to Pennsylvania. Shortly thereafter, on September
13, 2010, the Jackson County Youth Court ordered the
Department of Human Services to stop working with the parents
and to proceed with the termination of parental rights. At
this hearing, Hartley again asked for visitation, custody, or
ICPC rights, but all requests were denied.
The Department of Human Services filed a petition to
terminate the parental rights of both Hartley and Bartenbach
in May 2011. Despite the testimony of three social workers,
the guardian ad litem, and Dr. Donald G. Hoppe, all
recommending termination of parental rights, on June 20,
2011, the Jackson County Youth Court changed positions and
ordered reunification efforts with Hartley.
In October 2011, the Jackson County Youth Court granted
Hartley full custody of the children. However, the Lincoln
County Chancery Court granted the Wattses' Temporary
Injunctive Relief, staying any change in custody. Miss.
Dep't of Human Servs. v. Watts, 116 So.3d 1056, 1057
(Miss. 2012).That same month, the Wattses filed their
petition for termination of parental rights, adoption, or in
the alternative custody, and for other relief in Lincoln
County Chancery Court. Following the Mississippi Supreme
Court's ruling on an interlocutory appeal, to determine
whether the Lincoln County Chancery Court had jurisdiction,
the case was remanded to the Lincoln County Chancery Court
for a trial on the merits. Id.
Between 2011 and 2014, Hartley had intermittent contact with
his children through phone calls and Skype. Hartley also
spent a total of twenty-seven days and nine hours with his
children through visits spanning from June 21, 2011, through
March 15, 2014.
Trial began on April 29, 2014, and lasted four days. At
trial, the Wattses called the following witnesses: Mark
Holmes (Guardian Ad Litem), Hartley (Respondent), Lena Parker
(DHS Supervisor), Lasonga Fields (DHS Resource Specialist),
and Lenita Watts (Petitioner). Hartley called the following
witnesses: Ellen Moore (therapist at Family Focus PLLC),
Lakeshia Kinnard-Ellis (DHS Family Protection Specialist),
Stephanie Stanton (DHS Adoption Specialist), Lindsay Teague
(DHS Social Worker), Martha Hartley (Respondent's
Mother), and Hartley (Respondent). Following the testimony of
the other witnesses, the guardian ad litem, Mark Holmes,
testified regarding his final report and recommendation that
parental rights be terminated for both Hartley and
Bartenbach. The Interlocutory Decree was entered on June 19,
2014, in favor of the Wattses' position, terminating
Hartley's parental rights and allowing A.B. and B.H. to
be adopted over the objection of a nonconsenting parent.
Following a six-month interlocutory period, the adoption
became final on December 23, 2014.
After the denial of his request for reconsideration, Hartley
timely filed this appeal on January 23, 2015, raising the
following issues: first, whether the Chancery Court of
Lincoln County erred in terminating the parental rights of
Frank Hartley Jr.; and second, whether the Chancery Court of
Lincoln County erred in failing to address the three
prerequisites for termination of parental rights that must be
met under Subsection (1) of Mississippi Code Section
In termination-of-parental-rights cases, the Mississippi
Supreme Court examines "whether credible proof exists to
support the chancellor's finding of fact by clear and
convincing evidence." W.A.S v. A.L.G., 949
So.2d 31, 34 (Miss. 2007) (citing K.D.F. & J.C.F. v.
J.L.H., 933 So.2d 971, 975 (Miss. 2006)). Further, the
chancellor's findings of fact "are viewed under
manifest error/substantial credible evidence standard of
review." Id. However, the Court will not
substitute its judgment for the chancellor's.
Whether the Lincoln County Chancery Court erred in
terminating the parental rights of Frank
The Wattes sought termination of parental rights pursuant to
Mississippi Code Section 93-17-7 (Rev. 2013), which allows
the adoption of a child over the objection of a nonconsenting
parent upon a finding by the chancellor of certain enumerated
factors. The chancellor's decision to terminate parental
rights was based on four findings: A. Moral unfitness; B.
Failure to provide support; C. Past and present conduct; and
D. Acts and omissions under Section 93-15-103.
Whether the chancery court erred in determining that
the moral unfitness standard had been met by
clear and convincing evidence.
Hartley argues that the Wattses failed to overcome the strong
presumption in favor of a natural parent retaining parental
rights. In Re Adoption of H.H.O.W., 109 So.3d 1102
(Miss. Ct. App. 2013). The party seeking the adoption and
termination of parental rights must prove by clear and
convincing evidence that the objecting party is
"mentally, or morally, or otherwise unfit to rear and
train [his child]." Miss. Code Ann. § 93-17-7(1)
(Rev. 2013); see also In Re Adoption of
H.H.O.W., 109 So.3d 1102 (Miss. Ct. App. 2013). Hartley
disputes each of the factors on which the chancery court
relied to support the termination of parental rights. The
chancellor cited each of the following findings in
determining that Hartley was morally unfit.