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Hartley v. Watts

Supreme Court of Mississippi

March 2, 2017

FRANK HARTLEY, JR.
v.
JOHN D. WATTS AND LENITA S. WATTS

          DATE OF JUDGMENT: 12/23/2014

         LINCOLN COUNTY CHANCERY COURT, TRIAL JUDGE: HON. EDWARD E. PATTEN, JR.

          TRIAL 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

          BEFORE WALLER, C.J., COLEMAN AND CHAMBERLIN, JJ.

          WALLER, CHIEF JUSTICE.

         ¶1. 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.[1] and granting an adoption to John D. and Lenita S. Watts. Finding that the judgment is supported by clear and convincing evidence, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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 Hartley.

         ¶4. 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 sentence.

         ¶5. 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, Mississippi.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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.

         ¶11. 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.

         ¶12. 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.

         ¶13. 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.

         ¶14. 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 93-15-103.

         STANDARD OF REVIEW

         ¶15. 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. Id.

         DISCUSSION

         I. Whether the Lincoln County Chancery Court erred in terminating the parental rights of Frank Hartley Jr.

         ¶16. 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.

         A. Whether the chancery court erred in determining that the moral unfitness standard had been met by clear and convincing evidence.

         ¶17. 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.

         i.Sex-Offender ...


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