R.B. and A.C.P. v. Winston County Department of Child Protection Services;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-CA-01618-COA

R.B. AND A.C.P. APPELLANTS

v.

WINSTON COUNTY DEPARTMENT OF CHILD APPELLEE
PROTECTION SERVICES

DATE OF JUDGMENT: 10/25/2017
TRIAL JUDGE: HON. JOSEPH KILGORE
COURT FROM WHICH APPEALED: WINSTON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: KELLY GUNTER WILLIAMS
ANDRE DE GRUY
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: THOMAS S. COLEMAN
JOYCE HILL WILLIAMS
MARION EARL SCALES
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 12/17/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.

TINDELL, J., FOR THE COURT:

¶1. Rachel and Alex appeal the judgment of the Winston County Chancery Court

terminating their parental rights to their two children, Tina and Aaron.1 On appeal, Rachel

and Alex argue (1) there was insufficient evidence to show that the Winston County regional

office of the Mississippi Department of Child Protection Services (CPS) used reasonable

efforts over a reasonable amount of time to diligently assist them in complying with their

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To protect the identities of the minor children involved in this case, we use fictitious
names for both the Appellants and the minor children.
service plans; and (2) the chancellor erroneously found that clear and convincing evidence

supported the termination-of-parental-rights (TPR) petition. Because the record contains

sufficient credible evidence to support the chancellor’s judgment, we affirm the termination

of both Rachel’s and Alex’s parental rights.

FACTS

¶2. Tina was born in 2008, and Aaron was born in 2012. On March 9, 2014, the children

entered CPS custody after CPS received information that Rachel and the children were

homeless and sleeping in a car in a parking lot. Rachel, Alex, and the children had been

staying with Alex’s mother. After a disagreement, Alex’s mother asked the family to leave

her house, and the family had nowhere else to go. On March 25, 2014, the Winston County

Youth Court entered an order finding that the children were neglected.

¶3. In May 2014, about two months after the children entered CPS custody, Rachel moved

to Oklahoma. The record reflects that she did not physically see the children again for almost

three years. Around June 2014, Alex was incarcerated for a parole violation. Testimony

reflected that he did not have any extended interaction with the children again for almost

three years. In January 2015, both Rachel and Alex entered into service plans with CPS.

Rachel’s service plan required her to maintain housing and employment in Oklahoma and

to maintain phone visits with the children and their social worker. For Alex, who was still

incarcerated, the service plan required that he contact the children by phone and letters and

participate in services and classes provided by the prison system.

¶4. On February 24, 2015, the youth court entered permanency orders that identified each

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child’s permanency plan as reunification with Rachel and Alex. On August 25, 2015,

however, the youth court entered orders that changed each child’s permanency plan to

adoption. The Winston County office of the Mississippi Department of Human Services

(DHS) filed a TPR petition in chancery court on February 3, 2016. The youth court held a

permanency hearing on February 23, 2016. During that hearing, the youth court

acknowledged that adoption was now the designated permanency plan for both children.

DHS filed an amended TPR petition in chancery court on August 30, 2016, to comply with

changes to the amended TPR statute. Rachel and Alex each answered the petition and denied

that the chancellor should grant it.

¶5. At some point in 2016, Alex was released from prison. In September 2016, Rachel

moved back to Winston County from Oklahoma. Upon returning to Mississippi, Rachel

initially lived with Alex and his father before moving out because Alex was drinking and

threatening her. When the TPR hearing began on May 12, 2017, Rachel was living with

Alex’s mother, who had previously kicked the family out of her house in 2014. Just prior to

the second day of the TPR hearing on July 19, 2017, Rachel secured housing of her own.

¶6. The guardian ad litem (GAL) appointed by the chancellor found that the relationship

between the biological parents and the children had substantially eroded due in part to “both

parents’ prolonged and unreasonable absence and unreasonable failure to visit . . . .” The

GAL further determined that the parents had failed to exercise reasonable visitation or

communication with the children while the children had been in CPS custody. The GAL

concluded that TPR was in the children’s best interest.

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¶7. Following two days of evidence and testimony, the chancellor issued his bench ruling

on August 29, 2017. He then entered his final judgment on October 25, 2017. The

chancellor ordered the termination of Rachel’s and Alex’s parental rights to both children.

In so doing, the chancellor recognized the youth court’s prior determination that the children

had been neglected and in CPS custody for at least six months. The chancellor also noted

the youth court’s findings that CPS had developed a service plan for the children’s

reunification with their parents and “ha[d] made reasonable efforts over a reasonable period

of time to diligently assist [Rachel and Alex] in complying with the terms and conditions of

the service plan but that [the parents] ha[d] failed to substantially comply with the terms and

conditions of the service plan . . . .” The chancellor concluded that clear and convincing

evidence showed TPR was in the children’s best interest because reunification was not

desirable for obtaining a satisfactory permanency outcome. Citing Mississippi Code

Annotated section 93-15-121(d)-(f) (Supp. 2016), the chancellor found that the following

grounds supported TPR: (1) Rachel and Alex had demonstrated an unwillingness “to provide

reasonably necessary food, clothing, shelter, or medical care for the child[ren]”; (2) they

“ha[d] failed to exercise reasonable visitation or communication with the child[ren]”; and (3)

their “abusive or neglectful conduct ha[d] caused, at least in part, an extreme and deep-seated

antipathy by the child[ren] toward the parent[s], or some other substantial erosion” of the

parent-child relationship.

¶8. Aggrieved by the termination of their parental rights, Rachel and Alex appeal.

STANDARD OF REVIEW

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¶9. We review a chancellor’s findings of fact regarding TPR “under the manifest

error/substantial credible evidence test.” Blakeney v. McRee, 188 So. 3d 1154, 1159 (¶13)

(Miss. 2016). Thus, we will not reverse when “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). We review de novo questions of law, such as statutory

interpretation. E.K. v. Miss. Dep’t of Child Prot. Servs., 249 So. 3d 377, 381 (¶16) (Miss.

2018).

DISCUSSION

I. Reasonable-Efforts Requirement

¶10. Rachel and Alex argue that DHS presented insufficient evidence to show that CPS

used reasonable efforts over a reasonable period to diligently assist them in complying with

their service plans. According to Rachel and Alex, the evidence demonstrated that they

substantially complied with their service plans despite CPS’s failure to use reasonable efforts

to diligently assist them. Rachel and Alex further contend the chancellor misinterpreted

Mississippi Code Annotated section 93-15-115 (Supp. 2016) by stating that only the youth

court could determine whether the reasonable-efforts requirement had been satisfied.

¶11. Section 93-15-115 provides:

When reasonable efforts for reunification are required for a child who is
in the custody of, or under the supervision of, the Department of Child
Protection Services pursuant to youth court proceedings, the court hearing a
petition under this chapter may terminate the parental rights of a parent
if, after conducting an evidentiary hearing, the court finds by clear and
convincing evidence that:

(a) The child has been adjudicated abused or neglected;

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(b) The child has been in the custody and care of, or under
the supervision of, the Department of Child Protection
Services for at least six (6) months, and, in that time
period, the Department of Child Protection Services has
developed a service plan for the reunification of the
parent and the child;

(c) A permanency hearing, or a permanency[-]review
hearing, has been conducted pursuant to the Uniform
Rules of Youth Court Practice and the court has
found that the Department of Child Protection
Services, or a licensed child[-]caring agency under its
supervision, has made reasonable efforts over a
reasonable period to diligently assist the parent in
complying with the service plan but the parent has
failed to substantially comply with the terms and
conditions of the plan and that reunification with the
abusive or neglectful parent is not in the best interests
of the child; and

(d) 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 based on one or more of the grounds set out in
Section 93-15-119 or 93-15-121.

(Emphasis added).

¶12. In his bench opinion, the chancellor discussed each of section 93-15-115’s

requirements that must be proved by clear and convincing evidence before TPR is granted.

In considering the reasonable-efforts requirement, the chancellor found:

[A] permanency hearing, or permanency[-]review hearing, has been conducted
pursuant to the Uniform Rules of Youth Court Practice and that that court has
found that CPS has made reasonable efforts over a reasonable period to
diligently assist the parents in complying with the service plan but the parents
have failed to substantially comply with the terms and conditions of the plan
. . . . The Winston County Youth Court did so . . . .

(Emphasis added).

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¶13. Upon review, we find that the plain language of section 93-15-115(c) requires “the

court hearing a [TPR] petition[,]” which in this case was the chancery court, to find (1) that

the youth court had previously held a permanency hearing or permanency-review hearing

under the Uniform Rules of Youth Court Practice and (2) that the youth court had

previously “found” that CPS had made “reasonable efforts” to assist the parent in complying

with his or her service plan, that the parents failed to substantially comply, and that

reunification was not in the child’s best interest. Miss. Code Ann. § 93-15-115(c). We

therefore conclude that the chancellor in this case correctly understood section 93-15-115(c)

to require him to find that the youth court had held such a hearing and that the youth court

had made the necessary findings.

¶14. In his bench ruling, the chancellor further stated:

Although this court may not have come to the same conclusion as the
youth court in August of 2015—that CPS had made reasonable efforts to
diligently assist the parents in complying with the service plan and that the
parents had failed to substantially comply with the terms and conditions—the
statute does not give this court the power to make that determination. The
youth court has exclusive power to make that determination.

Section 93-15-115, [s]ubsection (c), directs the chancery court to make
a finding that a permanency hearing or a permanency[-]review hearing has
been conducted pursuant to the Uniform Rules of Youth Court Practice, and
that court has made such a finding. Nothing allows the chancery court to go
behind the findings of the referee unless, of course, the order of the referee is
appealed.

There is evidence in the record that the Winston County Youth Court
did make that finding. That finding was not challenged, and this court must
determine if [TPR] is appropriate based on one or more of the following
grounds as set forth in the statute.

¶15. In their appellate brief, Rachel and Alex assert that the chancellor “expressed

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considerable doubt as to whether the reasonable[-]efforts requirement was satisfied.” As

discussed, however, section 93-15-115(c) requires “the court hearing a [TPR] petition” to

confirm that the youth court previously “found” that CPS made “reasonable efforts” and that

the other prerequisites for TPR have been met. The statute does not require the TPR court

to reassess the youth court’s prior factual determinations. Here, the youth court, a court of

competent jurisdiction, determined that sufficient credible evidence satisfied the reasonable-

efforts requirement, and the chancellor correctly recognized that the findings referenced in

section 93-15-115(c) are findings that the youth court makes when it determines whether

CPS should file a TPR petition. See U.R.Y.C.P. 29; see also Miss. Code Ann. § 43-21-

105(gg) (Rev. 2015) (defining “reasonable efforts”). The chancellor therefore properly noted

the youth court’s previous finding that CPS had used reasonable efforts before he proceeded

to determine whether clear and convincing evidence supported a statutory ground for TPR.

We therefore find that this assignment of error lacks merit.

II. Termination of Rachel’s and Alex’s Parental Rights

¶16. Rachel and Alex also contend that insufficient evidence supported the termination of

their parental rights. The chancellor concluded that clear and convincing evidence supported

the termination of Rachel’s and Alex’s parental rights on three statutory grounds: (1) their

unwillingness to provide the children with “reasonably necessary food, clothing, shelter, or

medical care”; (2) their failure “to exercise reasonable visitation or communication” with the

children; and (3) their neglectful conduct caused, at least in part, “an extreme and

deep-seated antipathy” by the children toward them or “some other substantial erosion” of

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the parent-child relationship. Miss. Code Ann. § 93-15-121(d)-(f).

¶17. As this Court has previously explained:

While the rights of a parent are fundamental, they are not absolute. By
statute, a parent may lose his parental rights if he fails to make any contact
with his child for more than a year or causes his relationship with his child to
substantially erode, at least in part, through his own serious neglect, prolonged
and unreasonable absence, or unreasonable failure to visit or communicate.

Barnes v. McGee, 178 So. 3d 801, 803 (¶1) (Miss. Ct. App. 2013). Only one statutory

ground is necessary to justify TPR. Id. at 805 (¶13). In the present case, credible proof

supported the chancellor’s findings that clear and convincing evidence established three

grounds for the termination of Rachel’s and Alex’s parental rights. We briefly address each

of these three grounds.

A. Unwillingness to Provide Reasonably Necessary Food,
Clothing, Shelter, or Medical Care

¶18. The children initially entered CPS custody on March 9, 2014, because they lacked

appropriate shelter and were living in Rachel’s car. By the time of the termination hearing

in 2017, however, the testimony reflected that Tina and Aaron were now “thriving in the

stable environment where they ha[d] been” for over three years. The chancellor also found

that, during the three-year time period at issue, Rachel and Alex had failed to demonstrate

a willingness to provide reasonably necessary food, clothing, shelter, and medical care for

the children.

¶19. Both the children’s social worker, Florarine Nicholson, and Nicholson’s supervisor,

Joann Clark, testified at the TPR hearing. Nicholson became the children’s social worker

around June 2015, and Clark supervised the case the entire time the children were in CPS

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custody. Nicholson testified that during the two years she had been involved in the case

neither parent had provided necessary food, clothing, medical care, or shelter for the children.

The record contains no evidence that, either during or after his release from prison, Alex

sought to provide reasonably necessary contributions for the children’s well being.

Following his release from prison in 2016, Alex moved in with his father, who CPS found

unsuitable as a relative placement for the children due to his prior criminal history. At the

TPR hearing, Nicholson testified that, to the best of her knowledge, Alex continued to reside

with his father and had failed to secure employment. In addition, the GAL testified that,

since Alex’s release from prison, he had been arrested twice in 2017 and charged with public

drunkenness.

¶20. As for Rachel, she testified that she had provided the children with clothes and

cleaning items when a tornado hit in Mississippi and that she had given the children some

Christmas gifts on another occasion. Aside from these statements, though, no other evidence

reflected that Rachel sought to provide reasonably necessary food, clothing, or medical care

during the three years the children were in CPS custody. With regard to shelter, both

Nicholson and Clark testified that Rachel failed to provide them with any proof that she had

obtained stable housing until a few days prior to the second day of the TPR hearing.

Moreover, the evidence reflected that Rachel never provided proof to CPS that she actually

“maintained” any shelter.

¶21. Nicholson testified that she continued to work with Rachel to find stable housing after

Rachel’s return to Mississippi in September 2016. In the two months prior to the TPR

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hearing, however, Rachel told Nicholson that she was homeless. Although Rachel had

initially moved in with Alex and his father, Rachel informed Nicholson that she left because

Alex was drinking and had threatened her. At the time of the first TPR hearing date on May

12, 2017, Rachel lived with Alex’s mother, who had kicked the family out of her home just

prior to the children entering CPS custody. Nicholson testified that she conducted a home

visit of Alex’s mother’s house but found that the housing arrangement failed to comply with

Rachel’s service plan and CPS policy. Between the two TPR hearing dates, Rachel moved

out of Alex’s mother’s house and once again lived in her car. Just prior to the second TPR

hearing date on July 19, 2017, Rachel finally secured suitable housing for herself and the

children.

¶22. In granting TPR, the chancellor acknowledged that “some recent progress” had been

achieved. He concluded, however, that “it was all too little, too late” and that the progress

had only begun after the TPR proceedings were initiated. Upon review, we conclude the

record supports the chancellor’s finding that clear and convincing evidence existed to

terminate parental rights due to Rachel’s and Alex’s unwillingness to provide reasonably

necessary food, clothing, shelter, and medical care.

B. Failure to Exercise Reasonable Visitation or
Communication

¶23. The chancellor also found by clear and convincing evidence that Rachel and Alex

failed to exercise reasonable visitation or communication with the children. Although Alex

wrote the children letters during his incarceration, there was no evidence that he continued

to communicate with them through phone calls or letters after being released. Further,

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between the time of Alex’s release in 2016 and the TPR hearing in 2017, the record reflects

that Alex apparently only visited with the children twice in person.

¶24. Rachel maintained phone contact with the children while she lived in Oklahoma, but

she did not see them in person for about three years. Rachel testified about a trip she took

to New Orleans, Louisiana, on her way to Mississippi. During that trip, Rachel stated that

she visited one of her other daughters and that daughter’s children. Rachel did not, however,

return to Mississippi during her time in Oklahoma to personally see Tina and Aaron. Further,

even though Rachel moved back to Mississippi in September 2016, the record reflects that

she did not actually see Tina and Aaron until about six months later around March 2017. The

record also reflects that neither Rachel nor Alex scheduled a visit with the children during

the two months between the first and second dates of the TPR hearing.

¶25. Nicholson testified that she attempted to work with Rachel, but Rachel would only

contact her as court dates approached. Clark likewise stated that CPS tried to assist Rachel,

but CPS “had a hard time talking with [Rachel]” because Rachel had “been very upset with

Ms. Nicholson and ha[d] not wanted to work with the agency.” Rachel confirmed during her

own testimony that she disliked Nicholson and that she failed to communicate with

Nicholson or go to Nicholson’s office even though she knew she should coordinate with

Nicholson to schedule visits with her children.

¶26. Based on such evidence, we find the record contained sufficient credible proof to

support the chancellor’s decision to terminate Rachel’s and Alex’s parental rights on this

ground.

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C. Substantial Erosion of the Parent-Child Relationship

¶27. As a final ground for termination, the chancellor found that clear and convincing

evidence demonstrated the parents’ neglectful conduct had caused, at least in part, an extreme

and deep-seated antipathy by Tina and Aaron toward their parents or some other substantial

erosion of the parent-child relationship.

¶28. Nicholson testified that she had not personally observed any dislike by the children

toward Rachel and Alex. Nicholson stated, however, that Aaron especially appeared to have

no bond with either parent during his few visits with them. Nicholson further testified that,

while Tina cared about her parents, being in foster care had adversely affected Tina’s self-

esteem. As previously discussed, Rachel did not physically see the children for about three

years, and Tina told Nicholson that she sometimes felt depressed and wondered “why she

really couldn’t have contact with her mother . . . .”

¶29. The GAL testified that substantial erosion of the parent-child relationship appeared

to have occurred due to the infrequency and inconsistency of the children’s contact with their

parents. Although Aaron knew Rachel and Alex were his biological parents, the GAL stated

that Aaron did not interact with them as though they were his biological parents. The GAL

further reported that Rachel’s phone calls to the children would produce adverse effects when

Rachel would make promises that she later failed to keep. The GAL stated that the adverse

effects could especially be seen in Tina, who began struggling in school and exhibiting

behavioral problems. The GAL testified, however, that both children were now thriving in

the stable environment they had been provided for the past three years.

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¶30. The chancellor concluded that prolonged absence and lack of communication between

the parents and children had resulted in a substantial erosion of the parent-child relationship.

Because clear and convincing evidence supported the chancellor’s determination, we find no

manifest error.

D. Best Interests of the Children

¶31. After finding that clear and convincing evidence supported three statutory grounds for

termination, the chancellor then considered whether TPR was in Tina’s and Aaron’s best

interests. The chancellor concluded “[i]t would be an extreme injustice to these children to

expose them to the extreme instability of the parents . . . after [the parents] failed to pull it

together after so long.” Credible evidence, including the GAL’s recommendation and the

testimony of both Clark and Nicholson, supported the chancellor’s decision that reunification

with Rachel and Alex was not desirable for obtaining a satisfactory permanency outcome for

the children. We therefore affirm the chancellor’s determination that TPR was in Tina’s and

Aaron’s best interests.

CONCLUSION

¶32. Because we find that clear and convincing evidence supported the chancellor’s

termination of Rachel’s and Alex’s parental rights, we affirm the chancellor’s judgment.

¶33. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ.,
CONCUR.

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