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C.S.H. v. Lowndes County Department of Human Services

Court of Appeals of Mississippi

May 1, 2018

C.S.H. APPELLANT
v.
LOWNDES COUNTY DEPARTMENT OF HUMAN SERVICES APPELLEE

          DATE OF JUDGMENT: 05/13/2015

          LOWNDES COUNTY COUNTY COURT HON. BEVERLEY MITCHELL FRANKLIN

          ATTORNEY FOR APPELLANT: GARY GOODWIN

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KURT STEVEN SAUL JR.

         EN BANC.

          TINDELL, J.

         ¶1. The Lowndes County County Court terminated CSH's parental rights to her two sons, Leo and Quinn.[1] On appeal, CSH raises several issues, which we restate as follows: (1) whether the county court failed to apply the statutory prerequisites for parental-rights termination; (2) whether the county court erroneously found the statutory prerequisites were met by clear and convincing evidence; and (3) whether the county court erroneously found the statutory grounds for parental-rights termination were met by clear and convincing evidence.

         ¶2. Finding no error, we affirm the county court's judgment.

         FACTS

         ¶3. CSH is the biological mother of Leo, born July 2007, and Quinn, born June 2008. Following a June 11, 2008 hearing, the Lowndes County Youth Court found CSH had "neglected and/or abandoned" eleven-month-old Leo. That same day, with the goal of eventually being reunited with Leo, CSH entered into an individualized service plan with the Lowndes County Department of Human Services (DHS). See Miss. Code Ann. § 43-15-13(4) (Rev. 2015). By signing the service agreement, CSH agreed to (1) obtain housing and maintain utilities; (2) obtain employment; (3) submit to random drug tests; (4) enroll in a drug-treatment program and attend Alcoholics Anonymous (AA) meetings; and (5) request monthly visits with Leo. The following day, on June 12, 2008, the youth court entered an order that placed Leo in DHS's custody and provided for a six-month review of the matter.

         ¶4. Two months later, on August 12, 2008, the youth court found CSH had also neglected her younger son, Quinn. The youth court ordered three-month-old Quinn to also be placed into DHS's custody, and the court scheduled a six-month review. Unlike Leo's hearing, CSH failed to attend Quinn's August 12, 2008 hearing. Although the youth court's August 12, 2008 order made no mention of CSH entering into a second service agreement, the record reflects that, on November 3, 2008, CSH and her caseworker reinitialed the previous service agreement from June 11, 2008.

         ¶5. On June 3, 2009, the youth court held Leo's permanency-review hearing, which CSH attended. By order entered August 5, 2009, the youth court determined that Leo was doing well with his foster parents and that CSH had failed to complete the terms of her service agreement. The youth court ordered that Leo remain in DHS custody, with reunification designated as his permanent plan and adoption designated as his alternate plan. Although the youth court found that termination of parental rights was not currently in Leo's best interest, the court decided to revisit the issue after granting CSH an additional six months to make progress on her service agreement. The youth court ordered that CSH be admitted to an inpatient drug-treatment program and that she complete her service-agreement requirements. The court further ordered DHS to help CSH find an inpatient drug-treatment facility.

         ¶6. On the same day as the August 5, 2009 order for Leo, the youth court held a permanency-review hearing for CSH's younger son, Quinn. Unlike Leo's hearing, CSH was not in attendance for Quinn's August 5, 2009 permanency-review hearing. In its August 5, 2009 order related to Quinn's permanency-review hearing, the youth court noted the following: Quinn had cocaine in his system when he was born, which prompted DHS to remove him from CSH's custody; Quinn was currently doing well with his foster parents; and CSH had failed to complete the terms of her service agreement. After reviewing the evidence and determining that parental-rights termination served Quinn's best interest, the youth court changed Quinn's permanent plan from reunification to adoption.

         ¶7. On December 2, 2009, the youth court conducted an annual review of Leo's case. Barbara Williams, the social worker assigned to both Leo's and Quinn's cases, testified that Leo had been in DHS's custody since about May 2008. Williams stated that CSH had been scheduling visits with her sons and that the children had appeared to warm up to CSH during the last two visits. Williams also testified, though, that CSH had not completed any part of her service agreement and had tested positive for cocaine in both June and July 2009. After the two failed drug tests, the drug-rehabilitation program working with CSH recommended that she enroll in an inpatient drug-treatment program. Williams admitted, however, that CSH, who was unemployed and received no federal assistance, lacked the means to pay for the inpatient treatment. After testifying that Leo needed permanence, Williams recommended that the youth court terminate CSH's parental rights.

         ¶8. After reviewing Leo's case, the youth court entered a new permanency order on September 23, 2010, effective from the time of the December 2, 2009 hearing. The youth court concluded that parental-rights termination served Leo's best interest "[d]ue to [CSH's] failure to complete the terms of her service agreement[, ] and due to the young age of [Leo] and the length of time [he] has been in foster care[.]" The youth court therefore changed Leo's permanent plan to adoption and ordered DHS to proceed with parental-rights termination.

         ¶9. On May 13, 2011, DHS filed a petition to terminate CSH's parental rights to both Leo and Quinn. Almost four years later, after numerous continuances, the county court conducted a hearing on March 9, 2015. During the four-year delay, CSH successfully completed an inpatient drug-treatment program, got married, and gave birth to a daughter, who was about four years old.

         ¶10. At the termination hearing, Williams testified that she became involved with the case in May 2008 when DHS received a 911 report about Leo. Upon investigating, Williams discovered that CSH had left Leo with a non-relative for about four months. The non-relative could no longer care for Leo, and CSH's whereabouts were unknown. DHS took Leo to a doctor, who admitted him to the hospital for an abscess near his groin and upper respiratory issues. The following month, in June 2008, CSH gave birth to Quinn. After Quinn tested positive for cocaine, DHS took custody of him at the hospital. Williams confirmed that Leo and Quinn had remained in DHS's custody since they entered in 2008.

         ¶11. According to Williams, CSH partially complied with her June 2008 service agreement. Williams explained that CSH had six months to make progress on her service agreement and that the youth court even granted her an additional six months to complete the requirements. Starting around November 2008, CSH began to schedule and attend visits with her children. She also obtained housing when she married her husband, but she never obtained employment or attended AA meetings. Although CSH eventually completed an inpatient drug-treatment program, Williams testified that she did so outside the allotted time frame. Williams stated that, between November 2008 and January 2010, CSH continued to struggle with drug use. Then, in January 2010, CSH entered an inpatient drug-treatment program. Despite CSH's eventual completion of the program around May 2010, Williams testified that she no longer tried to reunify CSH with her children because the youth court had already changed the children's permanent plan to adoption. However, Williams acknowledged that, after CSH had completed the inpatient program in 2010, she had passed all her subsequent random drug tests and done everything she could to satisfy the service-agreement requirements to regain custody of her children. Williams also testified she was satisfied that CSH presented no danger of neglect or abuse to her almost four-year-old daughter, who lived with CSH and her husband.

         ¶12. Having observed CSH's visits with Leo and Quinn, Williams testified there had been substantial erosion of the mother-child relationship due to CSH's absence during the first few months of the boys' lives. By contrast, Williams stated that Leo and Quinn had bonded with their foster family, who took care of all the boys' needs. Williams averred that DHS had done all it could to help CSH timely complete her service-agreement requirements for reunification. Williams also stated that, in her professional opinion, termination of CSH's parental rights served Leo's and Quinn's best interest.

         ¶13. The children's pediatrician next testified that both boys were relatively healthy, although Leo experienced occasional wheezing and eczema and Quinn had been diagnosed with ADD/ADHD. The pediatrician stated that Quinn needed to remain on his current ADD/ADHD medications for the foreseeable future but could hopefully learn to manage the condition on his own. The pediatrician also testified that, while all children benefit from a stable and consistent environment, children with ADD/ADHD especially need such an environment. Based on her observations of Leo's and Quinn's interactions with their foster parents, the pediatrician testified that the boys had bonded with their foster family.

         ¶14. Leah Headings, a private-practice clinical social worker, next testified that DHS referred Leo and Quinn to her in December 2012 to assess the boys' adjustment to their foster home and the effects of their monthly visits with CSH. Headings formed her assessment after completing twenty-four individual sessions with each child. Headings concluded the children were thriving in their foster placement and considered their foster parents to be their mother and father. Headings testified Leo eventually seemed to grasp that, along with his foster mother, CSH was also his mother. However, Headings stated she never saw any indication that Quinn understood CSH's relationship to him. In Headings's opinion, removing the boys from their current foster-care placement "would be totally devastating[ and] confusing and would have lifelong implications" on the children. She further testified that she believed it was in the boys' best interest to remain with their foster parents.

         ¶15. Mary Reese, a DHS adoption specialist, next testified about the visits she observed between CSH and the boys. Reese testified that Leo and Quinn appeared to lack a strong bond with CSH. Reese stated the boys never ran up and greeted CSH at the beginning of the visits, nor did they appear disappointed when the visits ended. According to Reese, CSH had to initiate most of the interaction with the boys. By contrast, Reese said that Leo and Quinn possessed a strong bond with their foster parents, whom they identified as their actual parents. Reese testified she believed remaining with their foster parents served the children's best interest because that was the only home the boys had ever really known.

         ¶16. Leo and Quinn's foster parents, the Smiths, also testified that they had a strong bond with the boys and that the boys considered the Smiths to be their parents. The Smiths stated they had observed no similar attachment between the boys and CSH. If the court terminated CSH's parental rights, the Smiths expressed their desire to adopt the boys. The Smiths further testified that they believed removing Leo and Quinn from their home would negatively affect the children.

         ¶17. CSH next testified about the children's removal from her custody and her attempts at reunification. CSH first began using drugs when she was fourteen. Although she was not on drugs at the time of Leo's birth in 2007, CSH testified that she subsequently relapsed. She left Leo with a friend, and then DHS took custody of him. CSH managed to stop using drugs again for a short time but suffered a relapse while pregnant with Quinn. Because Quinn tested positive for cocaine as a newborn, DHS took custody of him at the hospital. In January 2010, while pregnant with her daughter, CSH entered an inpatient drug-rehabilitation program. CSH completed the program in May 2010. In August 2010, CSH got married, and she testified that she had remained drug free since then. CSH stated that the monthly one-hour visits with Leo and Quinn failed to provide sufficient time to bond. Although she admitted that Leo and Quinn viewed the Smiths as their parents, CSH thought she could establish a strong bond with her children if the court returned them to her custody. CSH further stated that she and her husband possessed sufficient resources to financially support Leo and Quinn if the court returned them to her.

         ¶18. The guardian ad litem (GAL) testified that, although CSH appeared to be a fit parent to her daughter, he noticed a stark difference in CSH's interactions with her daughter and with Leo and Quinn. While the daughter clearly viewed CSH as her mother, the GAL testified that Leo and Quinn obviously did not. The GAL stated that CSH had even admitted to him that her relationship with her sons had eroded and that they viewed the Smiths as their parents. Based on his observations and case-file review, the GAL recommended that remaining with the Smiths would serve the children's best interest.

         ¶19. On May 14, 2015, the county court entered a judgment finding that clear and convincing evidence supported multiple statutory grounds for the termination of CSH's parental rights. The county court found as follows: First, CSH failed to exercise reasonable available visitation with the children. See Miss. Code Ann. § 93-15-103(3)(d)(i) (Rev. 2013).[2] Second, CSH failed to implement her agreed-upon service plan, which prevented DHS from returning the children to her. See id. § 93-15-103(3)(d)(ii). Third, she "exhibit[ed] ongoing behavior [that] would make it impossible to return [the children] to [her] care and custody because [she] has a diagnosable condition, drug addiction, unlikely to change within a reasonable time, which . . . makes [her] unable to assume minimally[] acceptable care of [the children.]" See id. § 93-15-103(3)(e)(i). Fourth, she "failed to eliminate ongoing behavior, identified to [her] by [DHS], " despite DHS's diligent efforts to assist her. See id. ยง 93-15-103(3)(e)(ii). Fifth, there had been substantial erosion of CSH's relationship with the children, caused in part by her "prolonged and unreasonable absence" and ...


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