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In re E. K.

Supreme Court of Mississippi

August 2, 2018

IN THE INTEREST OF E. K., A MINOR, TIMOTHY KING AND ELIZABETH KING
v.
MISSISSIPPI DEPARTMENT OF CHILD PROTECTION SERVICES

          DATE OF JUDGMENT: 06/06/2016

          COURT 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.

          BEFORE RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ.

          CHAMBERLIN, JUSTICE.

         ¶1. This appeal arises from the Marion County Youth Court's adjudication of E.K.[1] 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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 two-year-old.

         ¶3. 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.

         ¶4. In December 2015, the Mississippi Department of Human Services Division of Family and Children's Services[2] ("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.

         ¶5. 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"[3] was not prescribed for her by a physician.

         ¶6. 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."

         ¶7. 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 tests.

         ¶8. 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.

         Renee Porter was appointed as the attorney and guardian ad litem (GAL) for E.K.

         ¶9. 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."

         ¶10. 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. as neglected.

         ¶11. It appears from the transcript that the youth court immediately proceeded to the disposition hearing.[4] 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.

         ¶12. 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.

         ¶13. 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. . . ."[5]

         ¶14. 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 Timothy.[6]

         ¶15. 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 before us.

         STANDARD OF REVIEW

         ¶16. "'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)).

         ANALYSIS

         I. Notice, Waiver of Service of Process and Waiver of the Right to Representation

         ¶17. 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.

         ¶18. 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).

         ¶19. 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. ยง 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 ...


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