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J.P. v. L.S.

Court of Appeals of Mississippi

January 29, 2019

J.P. AND N.P. APPELLANTS
v.
L.S. AND M.S. APPELLEES J.P. AND N.P. APPELLANTS
v.
L.S. AND M.S. APPELLEES

          DATE OF JUDGMENT: 02/13/2017

          RANKIN COUNTY CHANCERY COURT HON. HAYDN JUDD ROBERTS JUDGE

          ATTORNEYS FOR APPELLANTS: CONNIE MARIE SMITH, JOHN SAMUEL GRANT IV

          ATTORNEY FOR APPELLEES: WHITNEY MCKAY ADAMS

EN BANC

          CARLTON, P.J.

         ¶1. This appeal concerns a termination-of-parental-rights (TPR) decision involving two minor children. The Rankin County Chancery Court found sufficient grounds existed to terminate the parental rights for both of the children's natural parents, J.P. (the father) and N.P. (the mother).[1] The chancery court then approved and ordered the children's adoption by L.S. (the potential adoptive mother) and M.S. (the potential adoptive father). J.P. and N.P. appeal the chancellor's TPR decision. Finding no reversible error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. J.P. and N.P. were married and had two children, a girl born in March 2010 and a boy born in February 2012. This appeal concerns the termination of their parental rights as to these two children.

         A. Background Information Regarding J.P. and N.P.

         ¶3. J.P., the children's natural father, has a child from a previous marriage who lives with her mother. The child visits with J.P. regularly. J.P. has a ninth-grade education. J.P. was also convicted for an armed robbery that took place in 2004, but since that time he has had no criminal record. J.P. was close to his mother, and after her death in May 2013, J.P. was prescribed and took Klonopin, a drug used to treat anxiety. Although his father testified at trial that he was worried about J.P. using this drug because it appeared to make him more depressed, there was no evidence presented at trial that J.P. abused this prescription or became addicted to Klonopin.

         ¶4. N.P., the natural mother, had a son from a previous marriage who was born in 2004. N.P. and her first husband used methamphetamine (sometimes referred to as meth, crystal meth, or crystal methamphetamine) before their son was born. N.P. testified that she stopped using meth when she was pregnant with her first son, but then when he was about two years old she began using meth again. During this time she also had criminal charges brought against her for false pretenses.[2] N.P. testified that she went to inpatient drug treatment to avoid going to jail, but she did not complete treatment. N.P. then transferred to outpatient rehabilitation, but she also did not complete that program. N.P.'s mother, P.S., had a hair-follicle test conducted on N.P.'s first son's hair. It was positive for meth. N.P.'s parents were granted temporary guardianship of her first son in 2006. N.P.'s mother adopted N.P.'s first son in 2010. N.P. testified that after a third drug-rehabilitation treatment in 2007 she no longer used meth until she started again in late December 2013, as further detailed below.

         B. The Time Period from the Birth of the Children Through October 2014

         ¶5. The trial transcript reflects that from the time the first child was born in March 2010, up until the children were placed in L.S. and M.S.'s custody in October 2014, J.P.'s work history was unstable. N.P., for example, testified that J.P.'s employment was unsteady since the older sibling was born, and J.P.'s father, J.P. Sr., acknowledged that he had hired J.P. several times but that he would not show up for work. When N.P. was working, N.P. primarily supported the family as a nail technician, and the couple also obtained financial support from N.P.'s mother, P.S. P.S. testified that she paid utility bills, cell phone bills, Mothers' Morning Out expenses, and other bills on a routine basis. Although J.P. testified that P.S. only paid the electricity bill, several other witnesses corroborated P.S.'s testimony, including N.P.'s acknowledgment that her mother "did help a lot [financially]."

         ¶6. P.S. also testified that throughout the children's lives she cared for them during the day while N.P. worked. P.S. would pick up the children from J.P. and N.P., then take them home and feed them, bathe them, dress them, and take them to Mothers Morning Out, or care for them herself. She likewise would take them to doctor visits when N.P. was at work. N.P. or sometimes J.P. would meet P.S. to get the children or to pick them up from her home. P.S.'s testimony was corroborated by several witnesses at trial, including N.P.'s acknowledgment at trial that when she was working, P.S. was the children's primary caregiver.

         ¶7. In May 2013, the younger child was burned in a fire while at home with J.P. J.P. testified that he used acetone to build up a fire in the fireplace. It caused an explosion that burned the child's face and surrounding furniture and curtains. J.P. testified that he did not immediately seek medical assistance for the child, but instead he called N.P., and she came home to look at the child's injuries. N.P. testified that she sent a picture of the injury to her mother, P.S. The following day, P.S. took the child to the doctor, where he was treated for the injuries. Neither J.P. nor N.P. accompanied P.S. when she took their son to the doctor. The record reflects that the child continues to have a scar on his face from this incident, which can be seen when he gets flushed.

         ¶8. In October 2013, N.P. was arrested on a second-offense shoplifting charge. She testified that she spent one week in jail and the children stayed with J.P.

         ¶9. In December 2013, J.P. and N.P. separated for two or three months. N.P. testified that this was when she began to use meth again, when she began "hanging out" with B.H. and his girlfriend. N.P. testified that during this time she and J.P. fought a lot because he thought she was cheating on him. She testified that "[J.P.] knew something was wrong . . . but he never said anything to me about smoking meth. He thought more or less that I was cheating."

         ¶10. J.P. and N.P. reconciled in early 2014. During this time they moved, with the children, a number of times, staying with friends or in motels. It was also during this period that N.P. took unauthorized cash advances from her grandmother's credit card for over $13, 000 and made purchases of over $2, 000. N.P. acknowledged at trial that she had a gambling addiction, and she testified that this money went toward her gambling and for the motel rooms that she, J.P., and the children were staying in.

         ¶11. In June 2014, J.P. and N.P. separated again, and N.P. moved in with B.H. N.P. testified that during the separations, the children stayed with her. N.P. testified that J.P. would call to talk to the older child and that sometimes he would have them on a Friday night. There was also testimony at trial that when N.P.'s mother, P.S., went on a two or three-week vacation, J.P. had the children. J.P.'s father testified that when J.P. had the children, he would bring them to his home during his visitation.

         ¶12. N.P. testified that her meth use got progressively worse during this time, becoming a daily habit after she moved in with B.H. in July 2014, at which time she not only smoked meth but also began using meth intravenously. She testified that B.H. also used meth daily. Regarding the children's potential exposure to the meth, N.P. testified that she did not use meth around the children and she "thought" she did not leave meth or meth paraphernalia around the house where the children could potentially be exposed.[3] N.P. testified that she was unaware whether B.H. was manufacturing crystal meth in his home and that she did not know whether B.H. exposed the children to meth. N.P. also testified that during this time the older child was bitten by B.H.'s dog, a Rottweiler. After that happened, the dog was kept tied up outside or it was "put up" if the children went outside. Both children were afraid of the dog.

         ¶13. J.P. testified at trial that he did not "know" that N.P. was on meth or that the children were being exposed to meth. In contrast, the guardian ad litem (GAL) report provides that J.P.'s stepmother told the GAL that J.P. told her that B.H. was on drugs during the time N.P. was living with B.H. J.P.'s father (J.P. Sr.) testified that J.P. told him that he thought N.P. was on drugs. N.P.'s mother, P.S., testified that during the time N.P. was living with B.H., J.P. said to her that B.H. "was not as good as we thought he was and he had seen it with his own eyes." J.P. testified that he told P.S. that he "was worried about my kids, you know, being over there [at B.H.'s home], . . . because I didn't know him at all." J.P. testified that in hindsight, he "should have known" about N.P.'s drug use.

         ¶14. L.S., the potential adoptive mother and N.P.'s first cousin, testified that in August 2014 she became suspicious that N.P. was using drugs again when she found out N.P. was not going to work but was still having P.S. pick up the children as if N.P. were still employed. In September 2014, L.S., who is a hairdresser, cut a piece of N.P.'s hair when she was fixing it. L.S. sent N.P.'s hair off to be tested. A short time later, the family, including N.P., went to Florida for a family wedding. According to the testimony of N.P.'s family members, based on N.P.'s "odd, odd behavior" that weekend and track marks on her arms, the family became convinced N.P. was using drugs. L.S. received the test results from N.P.'s hair, and they tested positive for amphetamine and meth.

         C. N.P.'s Intervention and J.P.'s Hospitalization Due to Bonfire Burns

         ¶15. L.S.'s mother then took the children for hair-follicle testing, and the family had an intervention with N.P. on October 16, 2014, which resulted in N.P. signing guardianship papers in which she agreed to allow L.S. and M.S. to have guardianship over the children. The request for guardianship was never submitted to the chancery or youth court.

         ¶16. N.P. testified that after the intervention, she called J.P. that same night and told him "they have the kids" or "the kids are taken," but he hung up on her. J.P. was at a friend's house where they were having a bonfire when he received her call. The record reflects that J.P. did not attempt to find out more information about where the children were or to try and reach them after N.P. called him.

         ¶17. Later that evening, J.P. was severely burned. J.P. asserted at trial that someone tossed kerosene on the bonfire and it exploded. J.P. was hospitalized for ten days, and after his release on October 25, 2014, he stayed with his father and stepmother so they could help him care for his wounds. J.P. had a number of surgeries over the next couple of months and was on pain medication while he healed.

         ¶18. Regarding the circumstances of the bonfire, J.P.'s father testified that he went to the hospital the next day to see J.P. and there were several people there, one having a number of tattoos, including one on his face. J.P.'s father, himself, had been a crystal meth addict, [4] and he testified that this person's appearance concerned him. The next day, J.P.'s father went to the home where the bonfire occurred to see for himself whether his son was involved in any "crystal meth cooking or anything like that." He described his experience with fire investigations that he gained while in prison, testifying that he had gone through the Mississippi Fire Academy and received a number of certifications, including "crystal meth labs." Based on his visit to the property the next day, J.P. Sr. testified that he was personally satisfied that it was just a bonfire. The GAL testified that she interviewed the woman who was also burned in the bonfire and that this woman also claimed that there were no drugs involved that night and that "[t]here was no meth lab going on that night."

         D. Test Results from the Children's Hair-Follicle Testing

         ¶19. Shortly after their intervention with N.P. and while J.P. was in the hospital, the family received the test results from the children's hair-follicle testing. The testing showed dangerous levels of meth in their systems.[5] A representative from Culpepper Testing Labs testified about the test results. She said that with respect to the younger child, in particular, "in all [her] years of testing, [she] could not . . . recall an adult or an overdose that [she's] seen with that much crystal meth in their system." She further testified that she has tested children who died as the result of drug exposure, and even in those children, she has never seen a level that high.

         ¶20. When they received the hair-follicle test results for the children, L.S. and M.S. immediately began neglect proceedings in Rankin County Youth Court, as described in more detail below.

         E. The Children

         ¶21. At trial, L.S. testified that after she gained custody of the children through the youth-court proceedings, she took both of them to UMMC Children's Hospital for psychological evaluations. The record reflects that the younger sibling, a boy, is in speech therapy and that he was slow to potty train, he had mild development delay, a language disorder, and low-average cognitive skills. Several witnesses testified at trial that the child had seemed to be "slow" and that he appeared dazed looking. They further testified that since he has been with L.S. and M.S., his eyes have cleared and he no longer has a dazed look. A child and family therapist testified at trial regarding her treatment of the older child, a girl. The older child has been diagnosed with an expressive language disorder. The therapist explained that this means that verbal and written language can be difficult for her. The child is also in speech therapy. The therapist also testified that the child has described instances in which she appeared to have more sexual knowledge than is normal and where she has acted out sexually. The therapist also believed that the child may also suffer from post-traumatic stress disorder.

         ¶22. N.P. testified about her close relationship with the children prior to L.S. and M.S. obtaining custody, and N.P. also testified that J.P. had a loving and close relationship with both children.

         ¶23. Testimony from the children's teachers, as well as testimony from family members and the GAL, shows that the children are currently thriving and, according to the GAL, are doing "exceptionally well" with L.S. and M.S. The older child is continuing to see the child and family therapist on a regular basis. The therapist expressed concerns about the effect of reuniting the older child with her natural parents given the progress she has made with L.S. and M.S. The therapist also testified that it did not appear from her work with the older child that she thought of J.P. as a parent, and the therapist never observed any indication that there was a bond there. Testimony at trial reflected that family members believe that the younger child did not know J.P.

         F. J.P. and N.P.'s Current Status

         ¶24. Testimony from trial, which ended November 29, 2016, including testimony from the GAL, shows that as of that hearing date, J.P. and N.P. were doing well. They reconciled in April 2015, purchased a home with the help of J.P.'s father, and, according to J.P. Sr., they have become financially independent.[6] N.P. had her drug assessment in December 2014 and began receiving intensive outpatient therapy and aftercare for alcohol and meth abuse in January 2015. However, the record reflects that although she attempted to eliminate her drug use at that time, she relapsed for a couple of weeks in January. The Region 8 specialist who worked with N.P. in her rehabilitation program testified that "relapse is very common," which is a fact N.P. acknowledged in her own testimony.

         ¶25. As of November 28, 2016, the last date of trial, the record reflects that N.P. has been taking and passing urine drug screens. Both J.P. and N.P. are employed. As of July 2016, when J.P. testified at trial, he had been employed for a year as a driller for SoilTech. N.P. has also regained employment with her prior employer since the spring of 2015. Both J.P. and N.P. regularly attend church. The record also reflects that J.P.'s father and his wife (J.P.'s stepmother) are available to J.P. and N.P. for advice and support.

         G. The GAL's Findings

         ¶26. The GAL testified as the final witness at trial. She was in court during the testimony of the other witnesses. She summarized her report dated February 22, 2016, and this report was admitted into evidence. The GAL testified that her report essentially covers the same issues addressed at trial, which have been addressed above. As she did in her report, the GAL recommended that N.P.'s parental rights be terminated. She summarized her opinion, as follows:

There's no doubt in my mind as a result of my investigations that [the] children were exposed to methamphetamine while living with their mother . . . . I don't think N.P. purposefully did anything, but . . . I don't . . . think there's any doubt that that's where the exposure came from. She was using [meth]. She was smoking it. She was ingesting it intravenously. In my investigation, my research, I found that there's . . . a residue that crystal meth leaves behind and that it will be on countertops and tables and the floor. And . . . children put things in their mouths. I don't have any doubt that . . . this is where the children were exposed to it. I've also learned that chronic effects of methamphetamine exposure in children include development delays, failure to thrive, behavioral problems. These children have been tested at UMMC Children's Hospital. They've had psychological evaluations. And both of the children do have some psychological issues or some learning issues . . . . I think all of these things are a result of the time period in which [the children were] . . . being exposed to the methamphetamine when [N.P.] was living with [B.H.]. . . .
[T]he Court's aware of N.P.'s history[, ] . . . [her] behavior and her criminal activity [that] occurred previously with her [first] son . . . . [I]t's just come full circle again in 2014 with [the children at issue here]. And she had been clean apparently from all reports for eight years between losing [her first son] and -- and this relationship with B.H. The idea of putting [the children] back in that situation with the possibility this could happen again is frightening. . . . I'm not willing to risk these children. And I believe it's in their best interests that N.P.'s rights be terminated.

         ¶27. As for J.P., the GAL recommended in her February 2016 report "supervised visitation [for J.P.], subject to expansion in the future." At the end of trial, however, the GAL changed her decision and recommended that J.P.'s parental rights be terminated, as follows:

[J.P.] was neglectful. He neglected these children's needs both before --before the drug use in that he was not financially providing for his children. . . . I think that his neglectful conduct has created an extreme and deep-seated antipathy by the child toward the parent and . . . a substantial erosion of the relationship to the parent and the child, which is subsection f of [Mississippi Code Annotated section] 93-15-121. I think that . . . future contacts between the parent and child are not desirable toward obtaining a satisfactory permanency outcome. I can't see that these children should ever be removed from their current home with [L.S. and M.S.] and placed back into custody [with J.P. or N.P.]. . . . So I do think that it is in their best interests that the parental rights of both J.P. and N.P. terminated.

         H. Course of Proceedings

         ¶28. As noted above, when they learned of the children's hair-follicle test results in October 2014, L.S. and M.S. began neglect proceedings in Rankin County Youth Court. In their petition filed October 21, 2014, L.S. and M.S. alleged that they suspected drug use on the part of J.P. and N.P. and that J.P. and N.P. had neglected their two children. At that time, the youth-court Department of Human Services (DHS) workers were not able to locate J.P. The record reflects that the youth-court GAL called his phone number but got no answer and could not leave a message because there was no way to leave a message by voicemail. The youth-court GAL also tried to get in touch with J.P. by asking N.P. whether she knew of any other way to contact him. N.P. said that she did not have any information as to his current location. As detailed above, it was at this time that J.P. had been burned in the bonfire. He was recovering from his injuries and subsequent surgeries. J.P. was not present at any of the youth-court proceedings. He testified that no one had notified him of the youth-court proceedings until after they were over. N.P.'s mother, however, testified that she told J.P. about the adjudicatory hearing in the youth court on the Friday before the Monday morning hearing.

         ¶29. On the same day L.S. and M.S.'s petition was filed, the youth court entered a temporary custody order, placing the children with L.S. and M.S. The order also included a no-contact provision applicable to both J.P. and N.P. The next day, the youth court conducted a shelter hearing in which it determined that the children should remain in L.S. and M.S.'s custody and that N.P. should submit to a drug and alcohol test. At the adjudicatory hearing held on November 24, 2014, the youth court found that the children were abused and/or neglected. The youth court ordered for the children to stay with L.S. and M.S. and continued its prior no-contact order for J.P. and N.P. Subsequently, the youth court transferred the case to Rankin County Chancery Court.

         ¶30. In February 2015, L.S. and M.S. filed an adoption and TPR petition in Rankin County Chancery Court for both children. At no time, whether in the youth court or before the chancery court, did J.P., on his own behalf or through counsel, appear specially to make any type of jurisdictional challenge with respect to the no-contact order previously entered by the youth court. On November 12, 2015, however, both J.P. and N.P., through counsel, petitioned for a writ of habeas corpus, requesting, among other things, that the chancery court return the children to them. Counsel made a general appearance before the chancery court on behalf of both J.P. and N.P. in these proceedings and did not appear specially with respect to any jurisdictional challenge as to J.P.

         ¶31. The chancery court denied J.P. and N.P.'s petition for habeas corpus, finding that the youth court had determined that the children were neglected when it entered its order on October 21, 2014, and that order provided that it "remains in effect till such time as the chancery court rules on the issue of custody." The chancery court kept the no-contact order in force throughout the trial on L.S. and M.S.'s adoption and the TPR petition, which was conducted on five separate dates between February and November 2016.

         ¶32. In February 2017, the chancery court issued its final judgment, first finding that the "the controlling and governing law" in this case was Mississippi Code Annotated section 93-17-7 (Rev. 2013), which sets forth the grounds for allowing an adoption over parental objection, and The Termination of Rights of Unfit Parents Law, Mississippi Code Annotated sections 93-15-101 through 93-15-111 (Rev. 2013), [7] as in effect when L.S. and M.S. filed their adoption and TPR petition in February 2015. The chancery court terminated both J.P. and N.P.'s parental rights and granted adoption to L.S. and M.S.[8] As to N.P., the chancery court found as follows:

The Court, taking into consideration all the testimony of the parties and witnesses, finds that the children were repeatedly exposed to [crystal methamphetamine] over a considerable period of time while under the direct care and control of N.P. Further, the Court finds that N.P. has demonstrated a cycle of drug addiction and criminal behavior, repeating the circumstances that led her to originally lose custody and parental rights of [her first son], along with engaging in what this Court finds to be abuse-exposure by these children to crystal methamphetamine over an extended period of time that resulted in substantial harm, luckily not death, which caused deterioration to the children to such an extent that their health and emotional, psychological[, ] and physical well-being were endangered. Further, there now exists a substantial erosion of the parent-children relationship which was caused, at least in part, by N.P.'s serious neglect and abuse.

         ¶33. Regarding J.P., the chancery court found:

The Court finds that J.P.'s lack of involvement and concern as well as his apathy towards his children combined with knowledge, or knowledge he should have been able to easily ascertain, regarding his children's exposure to crystal methamphetamine rises to the level of neglect. . . . The Court finds that J.P.'s lack of attention and care is not excusable or inadvertent but rather inexcusable and more than mere carelessness. Further, there now exists a substantial erosion of the parent-children relationship with J.P. which was caused, at least in part, by his serious neglect.

         ¶34. J.P. and N.P. filed a motion to reconsider the chancery court's order, and, at the hearing on their motion, the chancery court reminded the parties that it was "presented with what it found to be a very unique and distinctively different set of facts than other [TPR] cases, and that is that the children tested positive for the presence of crystal methamphetamine." The chancery court explained that "[it had] stated [in its judgment] that [this] rose to the level of abuse because that exposure to crystal meth by the children was while they were under the direct care of their mother." Regarding the father, the chancery court reiterated that in its judgment "it found that the father engaged in serious neglect because he knew or should have known that his children were exposed to crystal methamphetamine." The chancery court further explained that "the guardian ad litem [had] recommended termination of parental rights and the [chancery court] gave [that recommendation] the appropriate weight." The chancery court denied J.P. and N.P.'s motion to reconsider by an order entered April 3, 2017.

         ¶35. J.P. and N.P. appeal, asserting that the chancery court erred in terminating their parental rights by misapprehending and misapplying the controlling law; and, as to J.P., in basing part of its TPR decision on the youth court's no-contact order that was entered without notice to J.P. We disagree. For the reasons addressed below, we affirm the chancery court's judgment terminating J.P. and N.P.'s parental rights and granting adoption to L.S. and M.S. in this case.

         STANDARD OF REVIEW

         ¶36. "Appellate review in a case to terminate parental rights is the manifest error/substantial credible evidence test. . . . As long as there is credible evidence to support the chancellor's findings of fact, we must affirm the decision." In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 427 (¶14) (Miss. 2009); accord C.S.H. v. Lowndes Cty. Dep't of Human Servs., 246 So.3d 908, 913 (¶21) (Miss. Ct. App. 2018). In this regard, "we examine whether credible proof exists to support the chancellor's finding[s] of fact by clear and convincing evidence." W.A.S. v. A.L.G., 949 So.2d 31, 34 (¶7) (Miss. 2007) (internal quotation mark omitted). Finally, "[i]t is not this Court's role to substitute its judgment for the chancellor's." K.D.F. v. J.L.H., 933 So.2d 971, 975 (¶14) (Miss. 2006).

         ¶37. We also recognize that "[i]n Mississippi, as in other jurisdictions, there exists a strong presumption in favor of preserving parental rights. Only where that presumption is overcome by clear and convincing evidence is termination appropriate." In re A.M.A., 986 So.2d 999, 1009 (¶22) (Miss. Ct. App. 2007) (citation omitted). "However, these parental rights may be abridged when the welfare of the children is threatened." Vance v. Lincoln Cty. Dep't of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991); see In re A.M.A., 986 So.2d at 1009 (¶22).

         ¶38. "[Q]uestions of law such as statutory construction are subject to de novo review, and if a chancellor misapprehends the controlling rules of law or acts pursuant to a substantially erroneous view of the law, reversal is proper." Chism v. Bright, 152 So.3d 318, 322 (¶12) (Miss. 2014). Citing this standard from Chism, J.P. and N.P. assert that the chancery court's decision is subject to de novo review in this case because, according to them, the chancery court misunderstood and misapplied the controlling law.[9] We find no merit in this ...


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