FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT, FIRST
JUDICIAL DISTRICT HON. JENNIFER T. SCHLOEGEL DATE OF JUDGMENT
ATTORNEY FOR APPELLANT: CAROLYN ANN GEARY
ATTORNEY FOR APPELLEE: TONYA MICHELLE BLAIR
GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
Maria Lynn Pruitt Simmons appeals the chancellor's denial
of her motion for relief from the judgment terminating her
parental rights. We find no error and affirm.
AND PROCEDURAL HISTORY
The Harrison County Department of Human Services (DHS)
conducted an investigation after it received reports of
alleged drug abuse and child neglect by Simmons. In August
2011, DHS took custody of Simmons's five children after
they were found living in unsanitary and deplorable
conditions. The children were placed into temporary foster
care. This was Justin Smith's third time entering DHS
custody. Justin is the third oldest of Simmons's
children. He is the subject of this appeal.
On December 16, 2011, Justin was adjudicated a neglected
child by the youth court. He was placed in a psychiatric
treatment facility while the other children remained in
foster homes. DHS developed and implemented a plan to reunite
Simmons with her children. After Simmons failed to comply
with the plan, DHS ceased its reunification efforts and
sought to terminate Simmons's parental rights.
On April 3, 2012, DHS presented both Simmons and Joseph
Anthony Smith, Justin's alleged father, with a
"Surrender of Parental Rights and Consent to Adoption to
the Mississippi Department of Human Services."
Unbeknownst to DHS, the document incorrectly listed
Justin's date of birth as February 2, 2005 - the correct
date was February 1, 2005. Despite the error, both Simmons
and Smith signed copies of the document, surrendering their
parental rights to Justin. Notably, Smith is not listed on
the child's birth certificate, and the record indicates
that he is not Justin's biological father.
On September 4, 2012, a petition was filed to terminate the
parental rights of any unknown father of the minor child so
that adoption proceedings could begin. The matter was set for
a hearing on November 14, 2012. Prior to the hearing, DHS
discovered the error made to Justin's date of birth. DHS
corrected the error and sought to have both Simmons and Smith
execute new surrender and release forms. The attempt was
unsuccessful. DHS was unable to locate Smith, and Simmons
refused to sign the revised document. Justin remained in DHS
Justin was released from inpatient psychiatric treatment and
placed with a foster family in October 2014. DHS then filed a
petition to terminate the parental rights of Simmons, Smith,
and the unknown biological father of Justin. A hearing was
set for February 12, 2015. The chancery court issued
summonses to Simmons, Smith, and the unknown biological
father. Simmons was served with process on October 20, 2014.
Neither Simmons, Smith, nor any other person appeared for the
hearing as a parent of Justin. As a result of the hearing,
the chancellor terminated the parental rights of Simmons,
Smith, and any unknown biological father of Justin.
On July 9, 2015, Simmons, through legal counsel, filed a
"Motion for Relief of Judgment Pursuant to Mississippi
Rule of Civil Procedure 60(b)(1)(2) & (6)." Simmons
contested the judgment terminating her parental rights. She
argued that she was denied due process because she had not
been personally served with process. She claimed that she
never received a copy of the petition to terminate parental
rights, and therefore, she was unaware of the hearing date.
Simmons requested that the judgment be set aside and that she
be given an opportunity to defend herself in a hearing. In
November 2015, while the motion was pending, Justin's
adoption was finalized.
The chancellor held a hearing on the motion on February 25,
2016, and denied the motion. The chancellor ruled that
Simmons was not entitled to service of process or notice of
the hearing because she voluntarily consented to waiver of
process when she signed the document of surrender and release
on April 3, 2012. The chancellor further found that the
scrivener's error on the document was a non-fatal
defect. In her order, the chancellor noted that Justin's
date of birth had been off by one day. She concluded that the
document was correct in all other aspects - the child, the
city, the state, the year of birth, and the mother's name
were correctly identified. The chancellor ...