IN THE INTEREST OF E. K., A MINOR, TIMOTHY KING AND ELIZABETH KING
MISSISSIPPI DEPARTMENT OF CHILD PROTECTION SERVICES
OF JUDGMENT: 06/06/2016
FROM WHICH APPEALED: MARION COUNTY YOUTH COURT HON. JAMES
COLEMAN RHODEN WILLIAM SCOTT PHILLIPS CHADWICK L. SHOOK RENEE
McBRIDE PORTER TRIAL JUDGE
ATTORNEY FOR APPELLANTS: CHADWICK L. SHOOK.
ATTORNEY FOR APPELLEE: LAWRENCE E. HAHN.
RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ.
This appeal arises from the Marion County Youth Court's
adjudication of E.K. as a neglected child. A number of errors
stem from this adjudication. First, E.K. was adjudicated
neglected even though her mother was not properly before the
youth court and her father received no notice of the
adjudication hearing. Second, after review, we find that the
neglect petition was legally insufficient to provide notice
to E.K. or her parents of the neglect charges. Third, the
evidence offered to support a finding of neglect at the
adjudication hearing was legally insufficient. As such, we
vacate the youth court's adjudication order and render
judgment in favor of E.K. and her parents.
AND PROCEDURAL HISTORY
Elizabeth A. King and Timothy King are the parents of E.K.
E.K. was born on December 31, 2001. With a history of ADHD,
epilepsy, autism, mental disability and obsessive, compulsive
disorder (OCD), E.K. functioned on the level of a
Elizabeth and Timothy had been separated for two weeks at the
time of the initial investigation in this case. They had been
divorced for four years in the past before having remarried.
In December 2015, the Mississippi Department of Human
Services Division of Family and Children's
Services ("DHS") was contacted by law
enforcement officials about Elizabeth and E.K. DHS responded
to Elizabeth's residence on December 4, 2015. Law
enforcement officers on the scene were concerned that
Elizabeth was high on drugs, due to her repetitive 911 calls.
According to the report, Elizabeth had called 911 multiple
times, claiming that Timothy was in her attic or outside her
home attempting to gain access to her residence.
DHS prepared an investigative report that catalogued its
interactions with Elizabeth and E.K. "No abuse or
neglect was substantiated" during DHS's visit, and
the report found that Elizabeth loved E.K., was protective of
her, and assisted her. Elizabeth and E.K. had a "great
relationship." Further, there was no evidence of serious
physical harm or injury and no reported or evident physical
injuries. Timothy's history of domestic violence toward
Elizabeth, Elizabeth's fear of Timothy, and the fact that
Timothy "has not harmed [E.K.]" were catalogued in
the report. Elizabeth denied using drugs but did test
positive for marijuana use. Concerning Elizabeth's
positive test for marijuana, the report stated that
"this is being addressed and will be recommended for
services by the agency." One narrative attached to the
investigative report recounted that Elizabeth admitted to
taking a "Colonapin [sic] to try to get some
sleep." Elizabeth acknowledged that the
"Colonapin" was not prescribed for her by a physician.
According to the report, Elizabeth secured a protective order
against Timothy and changed the locks to her residence. Last,
the report noted that DHS was ordered by the Marion County
Youth Court "to open prevention case to monitor to [sic]
safety in the home."
The record contains a letter that accompanied the DHS
investigative report and recommended that the youth court
informally monitor the Kings. The initial intake order
entered in the youth court followed the letter's
recommendation and ordered informal monitoring of the Kings
or E.K. DHS's court summary next revealed that Elizabeth
had entered a service agreement on January 27, 2016.
According to the summary, Elizabeth had tested negative for
drugs on January 5, 2016, and had tested "negative
dilute" on February 2, 2016; March 3, 2016; and March
21, 2016. On April 20, 2016, Elizabeth had informed DHS that
she was tired and frustrated and would not take any more drug
As a result of Elizabeth's refusal, a second intake order
was entered in the youth court. This intake order directed a
formal petition to be entered. DHS directed a formal petition
to adjudicate E.K. as a neglected child be entered. Count 1
of the petition alleged:
That on or about 04/20/2016, in MARION COUNTY, MISSISSIPPI,
[E.K.] did become a NEGLECTED CHILD as defined by
§43-21-105(1) of the Mississippi Code of 1972,
Annotated. Prevention case was open [sic] to monitor the
safety issues in the home. During a visit to the home the
mother told the DHS Worker that she was tires [sic] and
frustrated and would not do any more drug tests.
Porter was appointed as the attorney and guardian ad litem
(GAL) for E.K.
DHS issued summons to Elizabeth and Timothy on May 18, 2016,
for an adjudication hearing on June 6, 2016. The summons was
returned unserved on June 2, 2016, with the note:
"unable to make contact."
The adjudication hearing was held on June 6, 2016. Elizabeth,
E.K., and the GAL were present. At the hearing, Michelle
Tony, a DHS caseworker, testified to the grounds for the
neglect petition. Tony testified that the agency had been
contacted by law enforcement officers who were concerned that
Elizabeth was mentally ill. Tony maintained that "[t]he
home checked out fine" and that a prevention case was
opened after Elizabeth tested positive for marijuana. In
response to the GAL's questioning, Tony also mentioned
that Elizabeth was refusing to take any additional drug
tests. From the bench, the youth court then adjudicated E.K.
It appears from the transcript that the youth court
immediately proceeded to the disposition
hearing. The GAL asked Elizabeth if she would take
a drug test, and-for the first time on the record-Elizabeth
spoke, replying: "I'll go take a drug test, but my
child ain't neglected. And you . . . every time you are
at my house, you state that [E.K.] is in the best of care.
Did you not? Do you not--" The prosecutor immediately
objected, and the GAL moved to continue the hearing to allow
Elizabeth to take a drug test. The court then questioned
Elizabeth concerning the "negative-dilute" drug
tests. The court informed Elizabeth, "We're
concerned about drug use. If there's no drug use,
we're not concerned. We are concerned about the child.
She seems to be doing well under your care, but we want to
continue that. We just need a little help from you."
Elizabeth stated, "If [the hair follicle drug test is]
court ordered, I'll take it." The youth court
continued the hearing until June 20, 2016, and ordered
Elizabeth and Timothy to take a hair-follicle drug test.
On June 20, 2016, the youth court entered an emergency
custody order, awarding custody of E.K. to the Marion County
Department of Human Services pending a shelter hearing.
Another emergency custody order awarded custody of E.K to DHS
and ordered law enforcement officials to assist in locating
E.K. At the shelter hearing held on June 28, 2016, Tony
explained that E.K. could not be located during this time.
Tony testified that on June 25, 2016, law enforcement
officials found E.K. and DHS took custody of her. At this
same hearing, counsel for the Kings questioned the
sufficiency of the adjudication of E.K. as neglected. The GAL
objected to the attacks on the adjudication of E.K. After the
hearing, the youth court determined that custody should
remain with DHS. The youth court also ordered Elizabeth and
Timothy to submit to a hair-follicle drug test.
Elizabeth's and Timothy's counsel formally entered an
appearance on July 1, 2016, and filed two motions. The first
motion was to set aside the shelter order, to return E.K. to
Elizabeth and Timothy and to stay local proceedings; the
second motion was for permission to seek interlocutory
appeal. The second motion attacked the evidentiary basis of
the adjudication of E.K. as a neglected child. After a
hearing, the youth court entered an order permitting
Elizabeth's and Timothy's interlocutory appeal
"of this Court['s] June 6, 2016 Adjudication Order.
. . ."
On February 21, 2017, the youth court again ordered Elizabeth
to submit to a hair-follicle test due to her test showing
"diluted." This time, though, it found that Timothy
did not have to submit to a hair follicle test "in that
none of his test[s] were questionable." Elizabeth
submitted to the hair-follicle test on March 3, 2017. On
April 3, 2017, the youth court entered a permanency order,
granting custody of E.K to Elizabeth and
E.K., Elizabeth, and Timothy now appeal the sufficiency of
the neglect petition, the sufficiency of the evidence
supporting adjudication, the lack of notice and service of
process to Elizabeth and Timothy for the adjudication
hearing, several of the custody orders and the orders
concerning the hair-follicle drug tests. The issues related
to the adjudication order are dispositive of the appeal
"'The appellate standard of review for youth court
proceedings is the same as that which we apply to appeals
from chancery court. . . .'" In re J.P.,
151 So.3d 204, 208 (Miss. 2014) (quoting A.B. v.
Lauderdale Cty. Dep't of Human Servs., 13 So.3d
1263, 1266-67 (Miss. 2009)). Also, "[t]his Court reviews
matters of law de novo." Id. Statutory
interpretation, of course, is a matter of law. 5K Farms,
Inc. v. Mississippi Dep't of Revenue, 94 So.3d 221,
225 (Miss. 2012) (citing Ameristar Casino Vicksburg, Inc.
v. Duckworth, 990 So.2d 758, 759 (Miss. 2008)).
Notice, Waiver of Service of Process and Waiver of
the Right to Representation
The Kings argue that Elizabeth did not knowingly or
voluntarily waive her right to service of process or her
right to representation of counsel. They also maintain that
Timothy received no notice of the adjudication hearing. After
review of the record, we agree with the Kings.
Several statutory provisions of the Youth Court Act govern
the issue of notice, waiver of the right to service of
process, and protection of the right to counsel. The policy
statement of the Youth Court Act provides, "It is the
public policy of this state that the parents of each
child shall be primarily responsible for the care,
support, education and welfare of such children. . . ."
Miss. Code Ann. § 43-21-103 (Rev. 2015) (emphasis
added). "Parent" is defined as "the father or
mother to whom the child has been born, or the father or
mother by whom the child has been legally adopted."
Miss. Code Ann. § 43-21-105(e) (Supp. 2017). Also, in
the Youth Court Act, "The singular includes the plural,
the plural the singular and the masculine the feminine when
consistent with the intent of this chapter." Miss. Code
Ann. § 43-21-105(w) (Rev. 2015).
In a youth court proceeding,
(1) Each party shall have the right to be represented by
counsel at all stages of the proceedings including . . .
adjudicatory and disposition hearings . . . .
(2) When a party first appears before the youth court, the
judge shall ascertain whether he is represented by counsel
and, if not, inform him of his rights including his right to
counsel. If the court determines that a parent or guardian
who is a party in an abuse, neglect or termination of
parental rights proceeding is indigent, the youth court judge
may appoint counsel to represent the indigent parent or
guardian in the proceeding.
Miss. Code Ann. § 43-21-201(1)-(2) (Rev. 2015). Further,
"[a]ll parties . . . shall have the right at any hearing
in which an investigation, record or report is admitted in
evidence . . . to subpoena, confront and examine the person
who prepared or furnished data for the report and . . . to
introduce evidence controverting the contents of ...