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In re N.M.

Court of Appeals of Mississippi

April 11, 2017

IN THE INTEREST OF N.M., A MINOR: S.M. AND M.M. APPELLANTS
v.
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, MARION COUNTY, MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/17/2015

         MARION COUNTY YOUTH COURT, HON. MICHAEL H. WARD.

          ATTORNEY FOR APPELLANTS: PAMELA L. NELSON.

          ATTORNEYS FOR APPELLEE: MARION EARL SCALES SCOTT PHILLIPS.

          BEFORE GRIFFIS, P.J., BARNES AND WILSON, JJ.

          BARNES, J.

         ¶1. On September 29, 2014, M.M. gave birth to a child, N.M.[1] The child's father is M.M.'s husband, S.M.[2] N.M. is the youngest of the couple's eight children. A month prior to her birth, N.M.'s seven siblings had been adjudicated as "neglected children" and placed into three foster homes under the custody of the Mississippi Department of Human Services (DHS) in Marion County, Mississippi.

         ¶2. The DHS conducted a shelter hearing for N.M. on October 1, 2014, in Marion County Youth Court. At the hearing, the DHS attorney, Scott Phillips, noted the shelter hearing was made out of an "abundance of caution to provide care for this child pending the outcome of the service plan being met by the [parents] and the[ir] meeting all of the requirements of the DHS." The guardian ad litem, Renee Porter, noted that the other children were all in DHS custody due to neglect (based on a finding of unsafe living conditions) and stated that the youth court judge had instructed the DHS to "notify" the court when N.M. was born "and that we would deal with that immediately." Porter expressed "concern for this child to be placed in the home of the parents." Although noting the goal was to reunite the family "as fast as possible, " the youth court judge, Jim Rhoden, removed N.M. from her parents' custody and placed the child in DHS custody, specifically with Leigh Berry, a youth court officer. The appellants were granted visitation with the child under Berry's supervision.

         ¶3. In the shelter order, the youth court determined that "[N.M.] is less than one month old, [and] has been alleged to be a Child in Need of Special Care as defined by [section] 43-21-105(o) of the Mississippi Code of 1972, Annotated[.]" This subsection of the statute provides: "'A child in need of special care' means a child with any mental or physical illness that cannot be treated with the dispositional alternatives ordinarily available to the youth court." Miss. Code Ann. § 43-21-105(o) (Rev. 2015). The shelter order further stated:

[T]he effect of the continuation of [N.M.'s] residence within his/her own home would be contrary to the welfare of [N.M., ] and . . . the placement of [N.M.] with Marion County DHS is in the best interest of [N.M.]; and . . . the circumstances are of such an emergency nature that no reasonable efforts have been made to maintain [N.M.] within his/her own home and there is no alternative to custody[.[3]

         DHS filed a petition on October 10, 2014, alleging that N.M. "is a Child in Need of Special Care within the purview of the Mississippi Youth Court Act[.]"

         ¶4. At the adjudication hearing on October 17, the DHS family protection worker, Sue Watts, testified that "due to aggravated circumstances of neglect, because of the past history of the parent[']s unchanged neglectful behavior, which included unsafe living conditions, " the DHS was requesting that N.M. be adjudicated as a child in need of special care. Judge Rhoden adjudged that N.M. was "a child in need of special care, " as alleged in the DHS petition. Both parents attended the hearing and did not contest the adjudication at that time.

         ¶5. On May 27, 2015, a permanency hearing was held before a newly appointed judge. [4] The appellants, now represented by legal counsel, moved to set aside the judgment related to N.M. under Mississippi Rule of Civil Procedure 60(b)(4) and requested that N.M. be returned to their custody. The motion argued that the youth court did not have personal or subject-matter jurisdiction over N.M., as she was not a child in need of special care as defined by the statute and as DHS failed to set forth any facts to support its allegation. Therefore, the appellants claimed the youth court's orders were void. Counsel for the State acknowledged that N.M. has no mental or physical illness, as did the social worker, Watts. But the State's attorney noted the horrible living conditions (i.e., "maggots" and only one "moldy and nasty" bed) that had warranted removal of the other seven siblings back in August 2014. The new guardian ad litem, James Johnson, objected that the motion was untimely, being filed nine months after the court's ruling.

         ¶6. The judge did not rule on the motion to set aside the order adjudicating N.M. as a child in need of special care, deferring his ruling until such time as the transcripts from the prior hearings could be reviewed, and he granted a motion to continue the permanency hearing until July 17, 2015, due to the DHS's failure to obtain information regarding S.M.'s drug tests and because the parents had not complied with the service agreement.[5] On July 17, 2015, the judge granted a second continuance; however, the order was not filed until ...


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