Michael Smith v. Katie Doe

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-01654-COA

MICHAEL SMITH APPELLANT

v.

KATIE DOE APPELLEE

DATE OF JUDGMENT: 10/04/2019
TRIAL JUDGE: HON. SHEILA HAVARD SMALLWOOD
COURT FROM WHICH APPEALED: FORREST COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: CHARLES E. LAWRENCE JR.
ATTORNEY FOR APPELLEE: SHAWN M. LOWREY
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 03/30/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. This appeal arises from the termination of Michael Smith’s parental rights by the

Forrest County Chancery Court on the ground of Smith’s abandonment of his biological

minor child, Matthew.1 Michael appeals, claiming that the proof showed that he did not

abandon Matthew. Finding that there was clear and convincing evidence to support the

chancery court’s ruling, we affirm.

Statement of the Facts and Procedural History

1
To protect the interests of the child, and for the ease of reference, the Court of
Appeals has replaced the names of the parties and witnesses involved in this case with
fictitious names.
¶2. Michael Smith2 and Katie Doe met while attending college and formed a relationship.

When Katie became pregnant in 2011, Michael and Katie decided to move into an apartment

together. Michael accompanied Katie to prenatal appointments. Their son, Matthew, was

born on February 15, 2012. Michael and his mother, Dr. Danielle Smith, were present when

Katie gave birth to Matthew. Katie and Michael continued living together until June 2012,

when their relationship ended because of a dispute regarding Michael’s mother. According

to Michael, Katie wanted him to move out of the apartment. When he refused, Katie took

Matthew and moved into her parents’ house. Michael moved into a new apartment complex.

He asked Katie to move in with him, but she refused because she did not want go against her

father’s wishes.

¶3. During July 2012, Katie and Michael met on two occasions to discuss Michael’s

visitation schedule with Matthew. But arguments ensued, and the two came to no resolution

regarding Michael’s visitation. From July 2012 to December 2012, Michael saw Matthew

only once. In December 2012, Michael and Danielle sent Christmas presents to Katie, who

was still living at her parents’ house, which Katie received.

¶4. In January 2013, Michael briefly moved to Atlanta, Georgia. Michael emailed Katie

on January 20, 2013, requesting to set up a visitation schedule to see Matthew:

Hi. I hope this message finds you in good health and spirit. I have tried to call
you but I can not reach you so I am sending this email. First of all how is
[Matthew] doing? I know he is big now and I hope he walking now. I just want
the opportunity to express some things to you. I would like to share some
feelings I have, some thing I would like to apologize for and to come up with

2
Michael was originally from Tallahassee, Florida, and came to Mississippi to attend
college.

2
a plan for me to be involved in [Matthew’s] life. Please give me a call when
you can or send and email or text whenever you can.

The email, however, did not contain a domain address (i.e., “@yahoo.com”), so Katie never

received it. Believing that he and Katie would establish a proper visitation schedule, Michael

moved back to Mississippi in February 2013. Michael tried to call Katie to bring Matthew

to his apartment, but she refused because she did not want Michael to be alone with Matthew.

A month later, Katie brought Matthew to a restaurant so that Michael could spend time with

him. That same month, Katie and Matthew moved into an apartment complex with her then

fiancé John Jones, whom she had been dating since October 2012. Michael did not see

Matthew again until November 2013. During Thanksgiving in 2013, Katie brought Matthew

to a hotel to visit Michael and Danielle. This would be the last time that Michael would see

Matthew.

¶5. The Department of Human Services (DHS) filed a complaint for support and other

relief against Michael on April 14, 2014, in the Forrest County Chancery Court. Michael

obtained counsel in November 2014. An order for a continuance was filed in December

2014. During the same month, Michael and Danielle attempted to send Christmas presents

to Matthew. They again mailed the presents to Katie’s parents’ house, but this time the

presents were returned to them.

¶6. On February 17, 2015, the court entered an agreed judgment for support and other

relief, which was signed by both parties’ counsel. The judgment stated that beginning on

March 1, 2015, Michael was required to pay $140 per month for Matthew’s child support

until Matthew reaches the age twenty-one. Additionally, Michael was ordered to pay $25 per

3
month for Matthew’s medical support. Michael paid both the child support and medical

support. Although Michael obtained counsel for both the child support claim and to establish

visitation rights, his counsel did not file anything regarding visitation or custody until April

2016.

¶7. Michael filed a complaint to establish paternity, for permanent custody, for a

temporary judgment, and for other relief on April 11, 2016. Michael requested full legal and

physical custody of Matthew and that Katie be ordered to pay child support. Further, if the

court did not award him full custody, then Michael requested that the court should award him

joint legal custody. Additionally, Michael requested visitation.3 Michael also requested

temporary custody while the case was pending.

¶8. On April 20, 2016, Katie signed a voluntary acknowledgment of paternity,

establishing that Michael was Matthew’s biological father. Katie’s counsel also prepared a

prepared temporary order that Katie signed, which was given to Michael for his review. The

temporary order stated (1) that Michael would see Matthew once per week for two hours

outside of Michael’s apartment; (2) that Katie must be present during visitation; (3) that the

parties would coordinate when and where the visits were to take place; and (4) that telephone

visitation would be allowed three times per week, including video calls. On April 26, 2016,

Michael’s counsel sent a letter to Katie’s counsel, rejecting the temporary order because

Michael wanted more visitation. Later that year, on an undisclosed date, Katie’s fiancé John

3
Michael requested that at a minimum, he should be awarded visitation with Matthew
for every other weekend from 6:00 p.m. on Fridays until 6:00 p.m. on Sundays, one half of
the summer months, and one half of all holidays.

4
sent Michael the following Facebook message:

You may or may not know me but I’m [Katie’s] fiancé. She told me she called
you today about getting his name changed and you said you wanted joint
custody. She also said you think she has been keeping you from [Matthew].
How about this, you can see [Matthew] when you would like. You want to see
him just call and we can set something up. We want to change his name
because he has never been called [Matthew] and he only knows his name to be
[Kameron4]. I don’t know your reasons to not be a father to him but saying we
have kept him from you is false. I have raised him these last 3 years and you
would have to kill me to keep me from him. You want to see him then act like
it. The fact that you have a picture of him on your profile that you didn’t even
take from 2 years ago shows to me that you aren’t serious about being a father.
If you want to be a father take the proper steps to be one. Also if you don’t
want the responsibility you can sign your rights over and keep doing what you
been doing and no one will know the difference. I raise him and would give
my life for his happiness. So if you feel the same way act like it and talk to me
about it.

Michael did not respond to John’s message.5 There was no communication between Michael

and Katie until 2017.

¶9. In February 2017, both Michael’s and Katie’s lawyers moved to withdraw from the

case. The court granted both motions in March 2017. For about a year, nothing happened

in the case.6

¶10. Michael obtained new counsel on March 14, 2018. A hearing for visitation took place

on May 9, 2018, which Katie failed to attend. Because Katie failed to appear at the hearing,

4
Katie and John did not call Matthew by his legal name but gave him a new name
entirely.
5
Even though Michael did not respond, he was under no obligation to answer
because John had no legal authority regarding Matthew.
6
Michael moved back to his hometown of Tallahassee, Florida, in October 2017,
where he still resides.

5
on July 17, 2018, the chancery court awarded Michael joint legal custody and delineated his

visitation rights to every other weekend from Friday at 6:00 p.m. to Sunday 6:00 p.m., four

weeks in the summer, and holiday visitation.

¶11. On August 22, 2018, under new counsel, Katie filed a Mississippi Rule of Civil

Procedure 60 motion for relief from judgment and a counter-petition for termination of

parental rights, modification of child support, and other relief. Katie asserted that she had

only received notice of the hearing on the same day as the hearing and that Michael’s counsel

assured her that no order would be entered. Regarding terminating Michael’s parental rights,

Katie asserted that Michael had not had a relationship with Matthew since the first few

months of Matthew’s life. Katie sought to terminate Michael’s parental rights on the grounds

of abandonment, desertion, unwillingness to provide reasonable and necessary food and

clothing, shelter, and/or medical care, failure to exercise reasonable visitation or

communication with the child, substantial erosion of the parent-child relationship, and any

and all other applicable factors under Mississippi Code Annotated sections 93-15-119 and

93-15-121 (Supp. 2017). Additionally, Katie requested the court to appoint a guardian ad

litem (GAL).

¶12. On September 17, 2018, Michael responded to Katie’s motion, generally denying all

allegations. In addition, Michael filed a counterclaim for contempt, stating that Katie failed

to abide by the court’s order to allow visitation. Michael claimed that Katie was hostile when

he asked about visitation. Michael also requested that Katie be sanctioned or incarcerated.

Katie filed a motion to dismiss Michael’s counterclaim for contempt on October 3, 2018.

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¶13. The chancery court granted Katie’s Rule 60 motion without a hearing on November

5, 2018, finding that the motion was well-taken. Therefore, the court voided the order

awarding Michael visitation rights and granting other relief that was entered on July 17,

2018.

¶14. On November 14, 2018, the chancery court judge appointed a GAL to investigate and

make a recommendation about what would be in the best interest of the child.

¶15. The trial took place on August 22, 2019, and September 18, 2019. Five witnesses

testified, including Michael, Katie, John, Danielle, and the GAL. Prior to the witnesses’

testimonies, Michael withdrew his request for custody and proceeded on the issue of

visitation.

¶16. Michael testified that he and Katie lived together from January 2012 to June 2012 and

that he would often keep Matthew by himself. Michael stated that he moved to a new

location and requested that Katie and Matthew move in with him, but she declined because

she did not want to go against her father’s wishes. Michael testified that he met with Katie

to discuss his visitation rights for Matthew, but their discussions always led to arguments.

After a brief move to Atlanta, Georgia, Michael came back to Mississippi to be closer to

Matthew. He testified that he discussed a plan with Katie regarding co-parenting Matthew:

Michael would keep Matthew during the day and work a night job. But Michael stated that

Katie did not want him to be alone with Matthew for unknown reasons. The last time that

he had seen his son was in November 2013.

¶17. In 2012 and 2013, Michael stated that “all of [his] efforts to see [his] son was just

7
purely through [Katie].” After 2013, he relied on his attorney to “handle everything,”

including his visitation with Matthew. According to Michael, he hired the attorney to defend

him regarding the child support action, and the attorney was supposed to simultaneously file

a joint custody action as well. Michael testified that although he had formed a relationship

with Katie’s parents, he never contacted them about seeing Matthew because he was afraid.

Michael also admitted that Katie invited him to Matthew’s fifth birthday party in 2017.

Michael testified that Katie only invited him the day before the party and that he had to work

that day. Because of this, he did not respond to Katie’s message. The last time that Michael

sent Matthew any gifts was in 2014. He testified that he did not send any gifts after 2014

because of financial reasons and because his prior gifts had been returned to him. Other than

correspondences in 2012 and 2013, Michael did not have any other proof of communication

with Katie regarding seeing Matthew. Michael also stated that his financial circumstance

would change in the future. He testified that only made $18,000 yearly at the time of trial,

but he was in school to be a statistician, which had a median average of $80,000 yearly.

¶18. Danielle, Michael’s mother, testified that in 2014, she and Michael sent Christmas

presents to Katie’s parents’ house, but the presents were returned to them. She also sent

Katie text messages in 2016, asking about Matthew’s sizes and what they should get

Matthew for Christmas gifts, but she never received a response.

¶19. According to Katie, the last time that Michael had seen or contacted his son was in

November 2013. Katie testified that she had started dating her fiancé, John, in October 2012

and that they had moved in together in March 2013. John had always referred to Matthew

8
as his son.7 Katie also testified that she was unaware about any Christmas presents in 2014

that were mailed to her but returned to Michael. Katie stated that she was aware of the

Facebook message that John had sent to Michael but thought it would be best if John acted

as a mediator for her and Michael. Katie testified that around Christmas time in 2016, she

did receive Danielle’s text messages regarding gifts for Matthew, but she did not respond

because “we were in a bunch of legal mess.” But whenever Michael sent her text messages,

she always responded.

¶20. Katie also testified that she invited Michael to Matthew’s fifth birthday party, but he

never responded to her invitation. Additionally, she stated that she has had the same phone

number for seventeen years, so she was accessible to Michael. Katie stated that John has

filled the father role for Matthew, and he wants to legally adopt him According to Katie,

Matthew had only known John to be his father and refers to John as “Dad.”

¶21. John testified that because Michael made no real attempts to visit Matthew between

2013 and 2016, he decided to send Michael a Facebook message to reunite Michael with

Matthew. According to John, the message was not aggressive or threatening. John further

testified that he really loves Matthew and that if the court terminated Michael’s parental

rights, then he would adopt Matthew. John also stated that Matthew refers to him as “Dad.”

The court recessed until the second day of trial.

¶22. Prior to the continuance of trial, the GAL filed a preliminary report on September 11,

2019. The GAL interviewed Matthew, Michael, Katie, John, Danielle (Matthew’s paternal

7
Katie and John have one daughter together.

9
grandmother), and Justin Doe (Matthew’s maternal grandfather). The GAL reported that

while Michael had been paying child support since early 2015, he abandoned Matthew

because he had not had any contact with the child in over a year. The GAL stated that

Michael told her that he had not seen Matthew since around Thanksgiving 2013 and

presented little to no evidence that he made attempts to contact Michael. According to the

GAL, although Michael averred that Katie thwarted his efforts to see Matthew, Michael

presented little to no evidence of this either. Therefore, the GAL found that Michael

relinquished his parental duties by clear and convincing evidence and recommended that the

court terminate Michael’s parental rights.

¶23. The trial resumed on September 18, 2019. Consistent with her report, the GAL

testified and recommended that it would be in the best interest of the child to terminate

Michael’s parental rights on the ground of abandonment. She also testified that reunification

would not be suitable because Michael failed to exercise reasonable visitation or

communication with the child and that there was a substantial erosion of the relationship

between the parent and the child.

¶24. The chancery court issued an opinion and final judgment terminating Michael’s

parental rights on October 4, 2019. The court found that there was no proof that Michael had

made reasonable efforts to visit Matthew since November 2013. Specifically, the court cited

that Michael had not attempted to set up a visitation schedule to see Matthew other than once

when he sent an email to a defective email address. Although the court found that Michael

continued to pay child support, this did not overcome the fact that Michael had not seen

10
Matthew in over five years. The court also found that reunification between Michael and

Matthew was not desirable toward obtaining a satisfactory permanency outcome. Based on

Michael’s five-year absence from Matthew, and the fact that Matthew referred to John as his

“Dad,” this created a substantial erosion in Michael’s and Matthew’s relationship. Therefore,

the court terminated Michael’s parental rights along with his child support payments.

¶25. On November 1, 2019, Michael appealed, raising the following issues: whether the

court abused its discretion by terminating his parental rights and finding that he had

abandoned Matthew; whether the court failed to give proper weight to the statutory defense

that he provided financial support and that his visitation was thwarted by Katie; and whether

the court abused its discretion by finding that his termination of parental rights was in the

best interests of the child. We find that the chancery court did not err in terminating

Michael’s parental rights because there was clear and convincing evidence to support its

findings.

Standard of Review

¶26. In cases where parental rights have been terminated, our scope of review is limited.”

Little v. Norman, 119 So. 3d 382, 385 (¶12) (Miss. Ct. App. 2013) (quoting In re Adoption

of M.C., 92 So. 3d 1283, 1286-87 (¶18) (Miss. Ct. App. 2012)). “[T]he [C]ourt asks not how

we would have decided the case ab initio but whether there is credible proof to support the

chancellor’s findings of fact by clear and convincing evidence.” Id. “We review the

chancellor’s factual findings under the manifest error/substantial credible evidence test.” Id.

“This Court will not overturn a chancellor’s findings of fact when supported by substantial

11
evidence unless an erroneous legal standard is applied or is manifestly wrong.” Id.

¶27. We recognize that Michael has lost his fundamental right to be a parent to Matthew.

In Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court stated that “the

liberty interest at issue in this case—the interest of parents in the care, custody, and control

of their children—is perhaps the oldest of the fundamental liberty interests recognized by this

Court.” Id. at 65. “Fundamental as it is, a parent’s right is not absolute and must be weighed

against a child’s right to grow up with the opportunity to become well adjusted.” Barnes v.

McGee, 178 So. 3d 801, 804 (¶10) (Miss. Ct. App. 2013) (quoting In re A.M.A., 986 So. 2d

999, 1009-10 (¶¶22-23) (Miss. Ct. App. 2007)).

¶28. “[I]n Mississippi, as in other jurisdictions, there exists a strong presumption in favor

of preserving parental rights.” J.P. v. L.S., 290 So. 3d 345, 356 (¶37) (Miss. Ct. App. 2019).

(quoting In re A.M.A., 986 So. 2d at 1009 (¶22)). “Only where that presumption is overcome

by clear and convincing evidence is termination appropriate.” Id.

¶29. In determining whether the chancery court erred in terminating Michael’s parental

rights, our review is two-fold. A.B. v. R.V., No. 2017-CA-00792-COA, 2019 WL 5168558,

at *2 (¶15) (Miss. Ct. App. Oct. 25, 2019). We first review the chancellor’s decision that

Michael’s conduct constituted abandonment. Id.; see Miss. Code Ann. § 93-15-119. Then,

“[i]f the chancellor’s decision was supported by substantial credible evidence, our analysis

shifts to whether the chancellor should have found that reunification was desirable ‘toward

obtaining a satisfactory permanency outcome.’” Id.; see Miss. Code Ann. § 93-15-121.

¶30. “Before a state may sever completely and irrevocably the rights of parents in their

12
natural child, due process requires that the state support its allegations by at least clear and

convincing evidence.” M.H. v. D.A., 17 So. 3d 610, 616 (¶19) (Miss. Ct. App. 2009)

(quoting Santosky v. Kramer, 455 U.S. 745, 747-48 (1982)). “The chancellor must find

grounds for termination by clear and convincing evidence in order to terminate the parental

rights of a parent regarding the child.” Id. (quoting A.C.W. v. J.C.W., 937 So. 2d 1042, 1045

(¶12) (Miss. Ct. App. 2007)). We define clear and convincing evidence as

[the] weight of proof which produces in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established,
evidence so clear, direct and weighty and convincing as to enable the fact
finder to come to a clear conviction, without hesitancy, of the truth of the
precise facts of the case.

Moore v. Bailey, 46 So. 3d 375, 384 (¶35) (Miss. Ct. App. 2010) (quoting Johnson v. Bay

City S. Mortg. Co., 928 So. 2d 888, 892 (¶14) (Miss. Ct. App. 2005)).

¶31. “On appeal, it is not the appellate court’s role to substitute its judgment for the

chancellor’s.” Owens v. Owens, 169 So. 3d 925, 927 (¶8) (Miss. Ct. App. 2014) (citing

K.D.F. v. J.L.H., 933 So. 2d 971, 975 (¶14) (Miss. 2006)). “Instead, we look for whether

credible proof exists to support the chancellor’s finding of fact by clear and convincing

evidence, keeping in mind the best interest of the child is the paramount consideration.” Id.

(citing In re K.D.G. II, 68 So. 3d 748, 751 (¶12) (Miss. Ct. App. 2011)).

Discussion

¶32. Mississippi Code Annotated section 93-15-119(1)(a)(i)-(ii) provides that a court may

terminate the parental rights of a parent when, after conducting an evidentiary hearing, the

court finds by clear and convincing evidence

13
[t]hat the parent has engaged in conduct constituting abandonment or desertion
of the child, as defined in Section 93-15-103, or is mentally, morally, or
otherwise unfit to raise the child, which shall be established by showing past
or present conduct of the parent that demonstrates a substantial risk of
compromising or endangering the child’s safety and welfare; and that
termination of the parent’s parental rights is appropriate because reunification
between the parent and child is not desirable toward obtaining a satisfactory
permanency outcome.

(Emphasis added). Only one statutory ground is needed for termination of parental rights.

Owens, 169 So. 3d at 927 (¶7). In this case, the chancellor analyzed the facts and determined

that Michael abandoned Matthew.

A. Applicable Law: Abandonment

¶33. Mississippi Code Annotated section 93-15-103(a) (Supp. 2017) defines abandonment

as “any conduct by the parent, whether consisting of a single incident or actions over an

extended period of time, that evinces a settled purpose to relinquish all parental claims and

responsibilities abandonment may be established by showing that . . . (ii) [f]or a child who

is three (3) years of age or older on the date that the petition for termination of parental rights

was filed, . . . the parent has deliberately made no contact with the child for at least one (1)

year.”

¶34. “Abandonment is defined as ‘any conduct by a parent which evinces a settled purpose

to forego all duties and relinquish all parental claims to the child.’” M.H., 17 So. 3d at 616

(¶19) (quoting S.N.C. v. J.R.D. Jr., 755 So. 2d 1077, 1081 (¶11) (Miss. 2000)). “The test is

an objective one: whether under the totality of the circumstances, be they single or multiple,

the natural parent has manifested his severance of all ties with the child.” Id. (quoting

Ethredge v. Yawn, 605 So. 2d 761, 764 (Miss.1992)). “If a petitioner successfully

14
demonstrates by clear and convincing evidence that the objecting natural parent has

abandoned their child, then the court will consider the best interest of the child.” Id. (citing

J.C.N.F. v. Stone Cnty. Dep’t of Human Servs., 996 So. 2d 762, 766 (¶12) (Miss. 2008)). But

there is support for a chancery court not to terminate parental rights when there is

interference with the relationship. L.O. v. G.V., 37 So. 3d 1248, 1255 (¶33) (Miss. Ct. App.

2010).

B. The GAL’s Recommendations

¶35. Under Mississippi Code Annotated section 93-15-107(1)(d) (Supp. 2016), in cases of

involuntary termination of parental rights, a GAL shall be appointed to protect the best

interest of the child, except that the court, in its discretion, may waive this requirement when

a parent executes a written voluntary release to terminate parental rights. In order to ensure

the child’s best interests, the court must “(1) select a competent person to serve as the GAL,

(2) [choose] someone with no adverse interest to the minor, and (3) adequately instruct this

person on the proper performance of his or her duties.” Farthing v. McGee, 158 So. 3d 1223,

1226 (¶16) (Miss. Ct. App. 2015) (citing In re R.D., 658 So. 2d 1378, 1383 (Miss.1993),

overruled on other grounds by In re J.T., 188 So. 3d 1192, 1201-02 (¶¶49, 51)).

¶36. On September 11, 2019, the GAL in this case prepared a preliminary report, which

was entered into evidence and considered by the court. She recommended that Michael’s

parental rights be terminated. Consistent with her report, the GAL testified to the following:

[Michael] has not seen the child since November of 2013. He was invited to
the birthday party. He did not attend. I think in the direct answer to your
question, no, it is not usual that a parent would miss an activity of a child’s life
because they were working, but at this point if you’re trying to see your child

15
and you haven’t seen your child since November of 2013 and if he was
claiming that she was thwarting his efforts to see the child, an invitation it
seems to me that you would make all attempts to attend or to take an
opportunity to spend time with a child when it’s offered.

The GAL testified to the following in regards to whether future contact is desirable:

[T]he standard is whether [Michael] has taken the -- has he exercised his
parental rights and responsibilities because you have a child who is not able to
take care of themselves. They depend on somebody for food, clothing, shelter,
love, emotional support, educational support, and I think the testimony in this
case shows that the last time [Michael] has seen the child is November of
2013. He has provided nothing for this child except for child support. He has
paid child support. That’s the only thing he has going for him.

The GAL also testified that Michael failed to exercise reasonable visitation or

communication with the child pursuant to Mississippi Code Annotated section 93-15-121(e).

Additionally, the GAL testified that Michael’s actions constituted abusive or neglectful

conduct. These actions have caused, “at least in part, an extreme and deep-seated antipathy

by the child toward the parent, or some other substantial erosion of the relationship between

the parent and the child” pursuant to Mississippi Code Annotated section 93-15-121(f).

Furthermore, the GAL testified that Katie did not prohibit Michael from visiting or

communicating with Matthew.

¶37. The GAL opined that despite Michael’s “minor financial contribution,” Michael’s

five-year absence and his actions over an extended period of time was enough to relinquish

all of his parental claims and responsibilities. The chancellor accepted the GAL’s

recommendations and found that Michael had made no contact with Matthew for a period

of one year, which satisfied the statutory requirement under section 93-15-103(a)(ii) to

terminate his parental rights.

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¶38. We find that the chancery court did not err in terminating Michael’s parental rights.

In In Adoption of Harmon v. Ingle, No. 2018-CA-00114-COA, 2019 WL 2003943 (Miss. Ct.

App. May 7, 2019), we found that there was sufficient evidence to terminate a father’s

parental rights when he did not make reasonable efforts to see his children. Id. at *3 (¶12).

In that case, the father testified that he attempted to contact the child’s mother about seeing

his children to no avail, but there was no credible evidence to support this claim. Id. Further,

the father admitted that he stopped trying to contact the child’s mother. Id. But he admitted

that he knew where her parents lived and worked, meaning that he could have contacted them

about seeing his children. Id. Because we found that the father in that case had not seen his

children in over three years and did not make reasonable efforts to do so, we affirmed the

chancery court’s ruling to terminate his parental rights. Id. at *4 (¶16).

¶39. Here, when the termination proceedings had begun, Michael had failed to

communicate with Matthew in over four years. All of the witnesses testified that Michael

had not seen Matthew since 2013. Michael testified that after 2013, he did not make any real

efforts to communicate with Katie about seeing or talking to Matthew, nor did he attempt to

contact her parents in regard to seeing Matthew. Instead, he relied solely on his counsel to

handle the visitation matter. This Court has stated that a mistaken belief that a parent was

not allowed to contact another parent pending a termination of parental rights suit does not

overcome a clear and convincing showing of abandonment. Fuller v. Weidner, 147 So. 3d

380, 382 (¶8) (Miss. Ct. App. 2014).

¶40. Furthermore, Michael argues that he did not abandon Matthew because he continued

17
to pay child support and that Katie thwarted his attempts to see Matthew.8 However, there

is no proof in the record that indicates that Katie thwarted his attempts to see Matthew.

Again, Michael admitted that he did not make any real effort to communicate with Katie

regarding visitation with Matthew after 2013. Michael and his mother, Danielle, testified

that they had sent presents to Matthew to Katie’s parents’ house in 2014. However, Michael

admitted that he did not attempt to send any more gifts to Matthew after that year.

Additionally, both Katie and her fiancé, John, contacted Michael regarding visitation with

Matthew in 2016, but Michael still did not visit or communicate with his son. In 2017, Katie

extended a birthday invitation to their son’s fifth birthday party, but Michael failed to

respond to the invitation and did not attempt to contact Katie regarding seeing or talking to

Matthew after the invitation. There is evidence that Michael could have seen or at the very

least communicated with Matthew but for unknown reasons chose not to do so. Based on

the GAL’s recommendations and witness testimonies, we find that the chancery court

properly determined there was clear and convincing evidence that Michael failed to exercise

reasonable visitation or communication with his child, constituting abandonment.

C. Reunification

¶41. Mississippi Code Annotated section 93-15-121 provides that “if established by clear

and convincing evidence, [any of the eight alternative bases] may be grounds for termination

8
In his brief, Michael uses Mississippi Code Annotated section 93-15-119 (2)(a)-(b)
(Supp. 2016), which states that an allegation of desertion may be fully rebutted by proof that
the parent either provided financial support or was willing to visit the child, but reasonable
attempts to do so were thwarted by the mother or her agents. But the court found no
evidence that Katie thwarted his visitation.

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of the parent’s parental rights if reunification between the parent and child is not desirable

toward obtaining a satisfactory permanency outcome[.]” The chancery court used one of the

eight alternative bases for finding reunification undesirable:

(f) The parent’s abusive or neglectful conduct has caused, at least in part, an
extreme and deep-seated antipathy by the child toward the parent, or some
other substantial erosion of the relationship between the parent and the child.

(Emphasis added). “A finding of substantial erosion of the parent/child relationship

necessarily involves a consideration of the relationship as it existed when the termination

proceedings were initiated.” In re K.D.G. II, 68 So. 3d 748, 752-53 (¶22) (Miss. Ct. App.

2011) (quoting G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 338 (¶29)

(Miss. 2000)). “A substantial erosion can be proved by showing a prolonged absence and

lack of communication between the parent and the child.” Fuller, 147 So. 3d at 382 (¶9)

(quoting Ainsworth v. Natural Father, 414 So. 2d 417, 420 (Miss. 1982)).

¶42. It is undisputed that Michael had been nominally providing for Matthew financially

through child support since March 2015. However, at the time that the termination

proceedings were initiated, Michael had not seen or talked to Matthew in over four years.

This Court has found that a substantial erosion of a relationship between a parent and a child

existed when the relationship was deemed “non-existent.” A.B., 2019 WL 5168558, at *6

(¶37). Furthermore, the paramount concern in determining the proper disposition continues

to be the best interest of the child, not reunification of the family.” In re K.D.G. II, 68 So.

3d at 754 (¶28) (quoting May v. Harrison Cnty Dep’t of Human Servs., 883 So. 2d 74, 81

(¶22) (Miss. 2004)). It is clear that Michael had not had a relationship with Matthew since

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2013. He had not seen nor talked to Matthew since 2013. Michael stated that he did not

attempt to see or communicate with his Matthew since 2013, nor did he attempt to send

Matthew Christmas or birthday presents since 2014. Furthermore, Matthew no longer

recognizes him to be his father and only recognizes John as his “Dad.” Based on Michael’s

own testimony and his almost five-year absence from Matthew’s life, we find that there was

clear and convincing evidence that supported the chancellor’s decision that reunification

between Michael and Matthew was not desirable toward obtaining a satisfactory permanency

outcome.

D. Best Interest of the Child

¶43. “Even where one of the grounds for termination is proven by clear and convincing

evidence, the trial court must still consider whether ‘termination is in the best interest of the

child.’” A.B., 2019 WL 5168558, at *7 (¶38) (quoting Brown v. Panola Cnty. Dep’t of

Human Servs., 90 So. 3d 662, 665 (¶11) (Miss. Ct. App. 2012)). The Mississippi Supreme

Court has stated that “the sole reason for the appointment a guardian ad litem is to ensure that

the best interest of a minor child is fully sought out and protected.” M.J.S.H.S. v. Yalobusha

Cnty. Dep’t of Human Servs. ex rel. McDaniel, 782 So. 2d 737, 741 (¶17) (Miss. 2001)

(citing Miss. Code Ann. § 93-15-107 (Rev. 1994)). The GAL recommended that it would

be in the best interest of Matthew that Michael’s parental rights be terminated based on

Michael’s absence, John’s presence, and the confusion that Matthew would have establishing

his father. The chancery court followed the GAL’s recommendation, finding that Michael

had abandoned Matthew. While we may have come to a different conclusion, “it is not this

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Court’s role to substitute its judgment for the chancellor’s.” J.P, 290 So. 3d at 356 (¶36).

Therefore, we cannot say that the chancery court manifestly erred in its decision.

Conclusion

¶44. Finding that there was substantial, credible, clear, and convincing evidence to support

the chancery court’s determination in terminating Michael’s parental rights and that

reunification would not be suitable, we affirm the chancery court’s ruling.

¶45. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, LAWRENCE,
McCARTY, SMITH AND EMFINGER, JJ., CONCUR. WILSON, P.J., CONCURS
IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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