In the Interest of J.K., a Minor: Merle Glenn Kirkley v. Jackson County Department of Child Protection Services and J.L.M.K., a Minor, by and through his Next Friend, LaQuita Reed;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-00950-COA

IN THE INTEREST OF J.K., A MINOR: MERLE APPELLANT
GLENN KIRKLEY

v.

JACKSON COUNTY DEPARTMENT OF CHILD APPELLEES
PROTECTION SERVICES AND J.L.M.K., A
MINOR, BY AND THROUGH HIS NEXT
FRIEND, LAQUITA REED

DATE OF JUDGMENT: 06/12/2018
TRIAL JUDGE: HON. SHARON WILLIS SIGALAS
COURT FROM WHICH APPEALED: JACKSON COUNTY YOUTH COURT
ATTORNEYS FOR APPELLANT: CHAD KENNETH KING
CAMERON MATTHEW McCORMICK
ATTORNEY FOR APPELLEES: TONYA MICHELLE BLAIR
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: AFFIRMED - 10/13/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

BARNES, C.J., FOR THE COURT:

¶1. Merle Kirkley appeals the termination of his parental rights, arguing that the Jackson

County Youth Court (1) lacked jurisdiction over the adjudication of neglect and termination-

of-parental-rights (TPR) proceedings and (2) erred in finding there was clear and convincing

evidence to support the termination of Kirkley’s parental rights. Finding no reversible error,

we affirm.

FACTS AND PROCEDURAL HISTORY
¶2. Kirkley and Cierra Cavanagh had a child, “John,” who was born in November 2014.1

On April 17, 2015, a social worker for the Jackson County Department of Child Protection

Services (CPS) conducted a welfare check on the five-month-old child at a motel in Ocean

Springs, Mississippi. Police found Xanax, marijuana, liquid steroids, three Oxymorphone

pills, and a Suboxone strip in the room. Kirkley and Cavanagh were arrested for possession

of a controlled substance (a misdemeanor), and John was taken into the custody of the

Department of Human Services (DHS).

¶3. On April 21, 2015, the youth court judge appointed Denise Lee as the child’s

guardian ad litem (GAL). Kirkley was arrested again, on April 29, 2015, for possession of

controlled substances in Harrison County. He entered Wings of Life for drug treatment on

May 26, 2015, but left the facility one month later and entered another drug rehabilitation

facility in Warren County in December 2015.

¶4. After three continuances, a youth court hearing was held on May 26, 2015. Kirkley,

Cavanagh, the GAL, CPS/DHS representatives, and John’s foster mother were in attendance

at the hearing. The court ordered that custody of the child remain with the DHS, and an

adjudication hearing was scheduled for June 10, 2015. The order also noted that “the

permanent plan is reunification” and that the permanency hearing would be held on

November 16, 2015. Kirkley was given a drug screen and tested positive for

methamphetamine.

¶5. The following day, May 27, 2015, the Jackson County prosecuting attorney

1
A pseudonym is being used to protect the child’s identity.

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electronically filed a petition with the youth court, alleging that John was a neglected child,

and a summons was sent to Kirkley. On June 10, the youth court entered an order, stating

that a first call/adjudication hearing had been held and that both parents had denied the

allegations in the petition. The parents were granted supervised visitation with John.

¶6. An adjudication hearing was held on October 26, 2015, with Kirkley attending via

telephone because he was incarcerated in Louisiana for a parole violation. Both Kirkley and

Cavanagh withdrew their former denials and entered a plea of no contest; so the child was

adjudicated as a neglected child on the counts contained in the petition. Kirkley and

Cavanagh waived the waiting period for disposition, and the youth court proceeded with that

hearing. See Miss. Code Ann. § 43-21-601 (Rev. 2015). The DHS outlined the tasks the

parents needed to complete for reunification with John, including drug screens, parenting

classes, and aftercare programs. Specifically with regard to Kirkley, the DHS stated that he

would be required to complete an alcohol and drug treatment program. Kirkley agreed to

these requirements.

¶7. On April 4, 2016, a Harrison County Circuit Court grand jury indicted Kirkley for

two counts of possession of a controlled substance, stemming from his April 29, 2015 arrest.

The youth court entered an order on April 19, 2016, stating that a permanency hearing was

held with neither parent in attendance. The court also noted:

Merle Kirkley failed to complete [alcohol and drug] treatment, and later was
arrested on August 1, 2015. Since then Mr. Kirkley was ordered to drug court
and he was participating in the love in action ministries in Laurel, MS. I
spoke with the director of the program on April 18, 2016, and she indicated
that “Merle is on the run.” She indicated that he left the program.

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The youth court adopted the permanency plan for “reunification with a parent or primary

caretaker,” as well as the concurrent plan for adoption, finding them in the child’s best

interest. The court further concluded, however, that the DHS had “documented compelling

and extraordinary reasons why termination of parental rights would not be” in John’s best

interest at that time.

¶8. Kirkley was arrested in Louisiana and incarcerated at West Baton Rouge Parish

Detention Center from April 23, 2016, to October 25, 2016. On July 11, 2016, a plan review

hearing was held, wherein the youth court modified the permanent plan from reunification

to TPR/adoption. Although neither parent attended the hearing, both parents were granted

supervised visitation upon arrangement with the CPS.

¶9. A permanency review hearing was held on October 19, 2016. Kirkley attended via

telephone. The youth court determined that the DHS had made reasonable efforts to

effectuate a plan to meet the needs and best interest of the minor and accepted the

recommended permanency plan of TPR/adoption. A permanency hearing was scheduled for

April 17, 2017, and the youth court ordered Kirkley to keep his address and telephone

number updated and to notify the court if he wished to participate in the permanency hearing

via telephone.2

¶10. Kirkley entered a guilty plea to one count of possession of a controlled substance in

the Harrison County Circuit Court on March 20, 2017, and he was sentenced to serve three

2
The court’s order noted Kirkley’s address as “C/O Inmate #662020, West Baton
Rouge Detention Center, D Dorm, Bed 8, P.O. Box 620, Port Allen, LA 70767.”

4
years in the custody of the Mississippi Department of Corrections (MDOC).3 Kirkley was

given a new family-service plan on March 23, 2017, requiring him to submit to random drug

screens, “enroll and complete an after care program for a minimum of [twelve] months

within five days of completion of inpatient treatment as approved by the [CPS], . . .

[p]rovide a safe, stable, drug and violence free home for [John],” and maintain contact with

the child and the CPS. On May 8, 2017, the youth court entered an order continuing the

hearing until May 17, 2017. The court’s order noted Kirkley’s mailing address was “C/O

MDOC #150090, CMCF, 3794 Hwy 468, Pearl, MS 39208.”

¶11. On March 27, 2017, the DHS filed a TPR petition with the youth court, which noted

the couple’s (1) habitual drug use, (2) failure to complete alcohol and drug treatment, (3)

unwillingness to provide “reasonably necessary food, clothing, shelter, or medical care for

the child,” and (4) failure to “exercise reasonable visitation or communication with the

child.” The petition asserted that termination of Cavanagh’s and Kirkley’s parental rights

was “appropriate,” as reunification between Cavanagh or Kirkley and John was not

“desirable towards obtaining a satisfactory permanency outcome.”

¶12. On May 17, 2017, the youth court held the permanency hearing, with the GAL,

CPS/DHS representatives, foster mother, and Kirkley present. The DHS was unable to

locate Cavanagh, and it was later discovered she was in Illinois with family but planned to

enter a rehabilitation facility in California. The court found that the DHS had made

reasonable efforts towards the permanency plan of reunification previously adopted on April

3
As part of a plea bargain, Count II was retired to the files.

5
19, 2016. The youth court set a TPR hearing for August 8, 2017, and appointed Kirkley an

attorney to represent him at that hearing. A week later, on May 25, 2017, the youth court

issued an amended order, which stated that the permanency plan for reunification was “no

longer appropriate . . . and [that] the permanency plan of TPR/adoption [was] appropriate

and in the best interest of [John.]” Cavanagh filed a motion for a continuance in August

2017, which the youth court granted, rescheduling the hearing for November 7, 2017.

¶13. The GAL, CPS/DHS representatives, foster parents, Kirkley, and Cavanagh were

present at the November 7 hearing, along with Kirkley’s appointed attorney. At the hearing,

Kirkley acknowledged his prior criminal history, including a malicious mischief conviction

in 2009 and a business burglary conviction in 2012. He also agreed that he had been

incarcerated for a majority of time that John was in the DHS’s custody and was unable to

complete his service plan.

¶14. Gloria Sims, the DHS social worker assigned to the case, testified that Kirkley had

been given two service plans, one in 2015 and one in 2017 after he had been incarcerated.

The 2017 plan stated that Kirkley needed in-patient treatment and “to maintain visitations

with child as approved by [CPS].” Because he was incarcerated, he was allowed to write

letters to the child. Kirkley was also to obtain and maintain financial stability, have random

drug screens, “[r]efrain from physical and verbal altercations,” and enroll in aftercare upon

release from prison. Sims testified that Kirkley had not completed the service plan. Sims

also testified that Kirkley had seen John only six times since the child had been in DHS

custody (over two years), specifically noting that Kirkley had not seen John since March

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2016 due to his incarceration because the agency does not take children to visit inmates.

Sims opined that there was a substantial erosion of the relationship between Kirkley and his

son.

¶15. The TPR hearing was continued until January 25, 2018, and the permanency review

hearing was continued until April 16, 2018. Sims again discussed the DHS’s efforts to help

Kirkley complete his service plan, but, as mentioned in the prior hearing, the agency was

“very limited” in what it could do except to tell him to “participate in any and all services

or programs that they have while they’re incarcerated.” A December 27, 2017 order from

the Warren County Circuit Court was also entered into evidence, stating that Kirkley’s prior

suspended sentence for business burglary had been revoked. The circuit court sentenced

Kirkley to seven years in the custody of the MDOC, “suspended upon completion of the

Jackson County Restitution Center, and that upon completion of the Restitution Center, that

the defendant be placed on post release supervision for a period of five (5) years.” Kirkley

was also ordered to pay $4,177.50 in unpaid fines, fees, and assessments. The January 25

hearing was continued until March 1-2, 2018. Both Kirkley and Cavanagh were present at

the March 2018 TPR hearing, as well as Kirkley’s attorney, the GAL, the foster parents, and

various DHS representatives.

¶16. On April 16, 2018, after hearing all the testimony, reviewing the evidence, and

considering the GAL’s report and testimony from the November 7, 2017 hearing, the youth

court issued its findings of fact and conclusions of law. The youth court determined that

Kirkley “ha[d] been incarcerated for the majority of . . . [John’s] life . . . [and] ha[d] a

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history, by his own admission, of drug use and criminal activity.” The court also noted that

due to Kirkley’s continual incarceration and the child’s young age, Kirkley had “not been

able to sustain a relationship with [John.]” Concluding that Kirkley’s “pattern of criminal

behavior and drug use [was] not likely to change in the future,” the youth court found that

termination of Kirkley’s parental rights was in the child’s best interest.4 On June 12, 2018,

the youth court entered its final judgment terminating Cavanagh’s and Kirkley’s parental

rights, citing grounds for termination as set forth in Mississippi Code Annotated section 93-

15-121(c)-(f) (Supp. 2017). Aggrieved, Kirkley appeals from the youth court’s judgment.

STANDARD OF REVIEW

¶17. This court’s standard of review of a judgment terminating parental rights is limited

to whether the trial court’s decision was manifestly in error or clearly erroneous. In re

A.M.A., 986 So. 2d 999, 1009 (¶21) (Miss. Ct. App. 2007) (citing G.Q.A. v. Harrison Cnty.

Dep’t of Human Servs., 771 So. 2d 331, 335 (¶14) (Miss. 2000)). “Under this standard, we

will uphold [a youth court’s] decision unless that decision is not supported by ‘substantial,

credible evidence, giving deference to the youth court’s findings of fact.’” Id. (quoting

G.Q.A., 771 So. 2d at 335 (¶14)).

DISCUSSION

I. Whether the youth court had jurisdiction over the adjudication
and TPR proceedings.

¶18. Mississippi Code Annotated section 43-21-451 (Rev. 2015) provides in part:

4
The court also terminated Cavanagh’s parental rights, but because Cavanagh is not
a party to this appeal, we will not address the court’s findings with regard to the termination
of her parental rights unless pertinent to the issues Kirkley has raised.

8
All proceedings seeking an adjudication that a child is a delinquent child, a
child in need of supervision, a neglected child or an abused child shall be
initiated by the filing of a petition. Upon authorization of the youth court, the
petition shall be drafted and filed by the youth court prosecutor unless the
youth court has designated some other person to draft and file the petition.

(Emphasis added). Although Kirkley acknowledges that the prosecuting attorney submitted

the petition with his digital signature through the Mississippi Youth Court Information

Delivery System (MYCIDS) on May 27, 2015, he contends that the petition was not properly

filed with the clerk’s office. Thus, Kirkley claims that the youth court was without

jurisdiction to adjudicate John as a neglected child and, likewise, to terminate Kirkley’s

parental rights. Kirkley further reasons that his service of summons was defective because

“[w]ithout a filed petition, there is no petition.” (Emphasis added). See Miss Code Ann.

§ 43-21-505(1) (Rev. 2015) (Unless otherwise provided, “service of the summons shall be

made personally by delivery of a copy of the summons with a copy of the petition in a sealed

envelope attached to the summons.”). We find no merit to either claim. With his certified

digital signature, the prosecuting attorney submitted the petition to the clerk’s office, and the

record indicates that the petition was filed on the youth court’s general docket as Cause No.

30-YC-2015-P-277-1(284042) on May 27, 2015.5

¶19. Kirkley also argues that the summons failed to “inform him of his right to counsel or

his right to a continuance for a reasonable time to consult with counsel.” Mississippi Code

Annotated section 43-21-503 (Rev. 2015) provides a template for the form of summons and

contains the following language: “You have a right to be represented by an attorney. You

5
On January 18, 2006, the Mississippi Supreme Court authorized the use of digital
signatures on documents issued by the youth courts in the state using the MYCIDS system.

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are requested to immediately notify the youth court of the name of your attorney.” Section

43-21-503 provides that the form of the summons should “substantially” conform to the

statute’s language. Id. Rule 22 of the Uniform Rules of Youth Court Practice also states

that “[t]he form of the summons shall be pursuant to section 43-21-503” and contains an

additional notice to be placed at the bottom of the summons addressing various costs that

a party may be required to pay. Kirkley’s summons contained this required notice.

¶20. We find the summons issued to Kirkley, notifying him of the June 10, 2015

adjudication hearing, “substantially” complied with section 43-21-503 and Rule 22. While

the summons did not specifically contain the phrase, “You have a right to be represented by

an attorney,” it did state the following in capital letters and bold type: “IMPORTANT

NOTICE: . . . MERLE KIRKLEY YOU MUST BE REPRESENTED BY AN

ATTORNEY IN THIS CAUSE UNLESS THE RIGHT TO LEGAL

REPRESENTATION IS WAIVED.” Moreover, the youth court judge appointed counsel

to represent Kirkley in subsequent proceedings. Thus, unlike the cases cited in Judge

McCarty’s separate opinion, we find Kirkley was given notice of the adjudication

proceedings and informed that representation by counsel was a right that could be waived.

We have also found no requirement in the youth court practice rules or applicable statutes

that the summons must contain language informing a party of a right to a continuance.

Because Kirkley has not demonstrated that service of process was defective, or shown any

prejudice as a result of any alleged defect, we find this issue is without merit.

II. Whether the youth court erred in finding the termination of
Kirkley’s parental rights was supported by clear and convincing

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evidence.

¶21. In its June 12, 2018 “Judgment Terminating Parental Rights,” the youth court found

by clear and convincing evidence that it was in the best interest of John that Kirkley’s and

Cavanagh’s parental rights be terminated, citing section 93-15-121(c)-(f) of the Mississippi

Code,6 which sets forth the grounds for involuntary termination of parental rights and

provides in pertinent part:

Any of the following, if established by clear and convincing evidence, may be
grounds for termination of the parent’s parental rights if reunification between
the parent and child is not desirable toward obtaining a satisfactory
permanency outcome:

....

(c) The parent is suffering from habitual alcoholism or other
drug addiction and has failed to successfully complete alcohol
or drug treatment;

(d) The parent is unwilling to provide reasonably necessary
food, clothing, shelter, or medical care for the child . . . ;

(e) The parent has failed to exercise reasonable visitation or
communication with the child;

(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[.]

Miss. Code Ann. § 93-15-121(c)-(f). The youth court determined that both parents

6
In 2016, the Legislature amended the Mississippi Termination of Parental Rights
Law, deleting the prerequisites formerly provided in section 93-15-103(1) and setting forth
the requirements for termination of parental rights in sections 93-15-115 to 93-15-121. See
2016 Miss. Laws ch. 439, § 9 (H.B. 1240). These new statutes were enacted prior to the
TPR hearings and were cited in the youth court’s findings of fact and final judgment.

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suffer[ed] from habitual alcoholism or other drug addiction and [had] failed
to successfully complete alcohol and/or drug treatment, . . . [were] unwilling
to provide reasonably necessary food, clothing, shelter, or medical care for
[John], . . . failed to exercise reasonable visitation or communication with the
child, . . . [and that their] abusive or neglectful conduct ha[d] caused, at least
in part, an extreme and deep-seated antipathy toward the parent[.]

Kirkley appeals from the judgment, claiming that the youth court failed to make specific

findings of fact regarding the grounds for termination of Kirkley’s parental rights and erred

in adopting the GAL’s recommendation, which he claims failed to show that the GAL made

any independent investigation.

A. The GAL’s Findings

¶22. Mississippi Code Annotated section 93-15-107(1)(d) (Supp. 2016) requires that a

GAL be appointed to protect the interest of the child in a termination-of-parental-rights case.

A GAL’s requirements are to “be competent, without interests adverse to the child, and

adequately informed as to her duties,” as well as “to act as a representative of the court and

to assist the court in protecting the interests of an incompetent person by investigating and

making recommendations to the court.” R.L. v. G.F., 973 So. 2d 322, 325 (¶11) (Miss. Ct.

App. 2008) (citation and internal quotation marks omitted).

¶23. At the March 2018 hearing, Kirkley’s attorney objected to the admission of the

GAL’s report as hearsay, but the youth court judge overruled the objection, noting that a

GAL report is required. Kirkley argues on appeal that the court erroneously relied on the

GAL’s report because there is no documentation by the GAL that she “ever personally

observed, or interviewed or even spoke to the child, the father, or the mother.”

¶24. It is admittedly unclear from the record whether the GAL met or interviewed the child

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or Kirkley independently. However, in R.F. v. Lowndes County Department of Human

Services, 17 So. 3d 1133, 1139 (¶20) (Miss. Ct. App. 2009), this Court held that while it

“may be appropriate” for the GAL to contact or interview the natural parent, it is not

required. As the record indicates, Kirkley was incarcerated during much of this period.

¶25. With regard to a GAL’s failure to conduct an interview with the child, the supreme

court has stated that it would be difficult “to imagine that a [GAL], without ever visiting the

children he/she represents, can be fully informed as to their best interests.” M.J.S.H.S. v.

Yalobusha Cnty. Dep’t of Human Servs. ex rel. McDaniel, 782 So. 2d 737, 741 (¶16) (Miss.

2001). In M.J.S.H.S., the GAL based his recommendation that the mother’s parental rights

should be terminated “on records and reports from [DHS], and conversations with [the social

worker] and the [child’s therapist].” Id. at 739 (¶7). The GAL did not speak with the

children or mother. Id. The supreme court vacated the termination of parental rights and

remanded for a hearing due to the GAL’s failure “to ‘zealously’ inquire into and protect [the

children’s] best interest.” Id. at 741 (¶18). A year later, in D.J.L. v. Bolivar County

Department of Human Servs. ex rel. McDaniel, 824 So. 2d 617, 622 (¶17) (Miss. 2002), the

supreme court remanded for a limited hearing due to the GAL’s reliance on the transcript

from the termination hearing and failure to provide a report/recommendation until almost

one year after the TPR order. The GAL’s report “merely acknowledge[d] that the [GAL]

agree[d] with the recommendation of the Bolivar County CASA worker in that the son and

daughter should remain in the custody of DHS with plans of attempting adoption.” The

supreme court further noted:

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There is nothing in the record to indicate that the guardian ever talked
privately with the children as required by M.J.S.H.S. There was no
independent report presented to the trial court during the hearing or prior to
the judge’s decision. The guardian did not testify, as has occurred in some
cases, but only limited himself to the cross-examination of other witnesses.

Id.

¶26. “[T]he sole reason for the appointment a [GAL] is to ensure that the best interest of

a minor child is fully sought out and protected.” M.J.S.H.S., 782 So. 2d at 741 (¶17) (citing

Miss. Code Ann. § 93-15-107 (Rev. 1994). In this case, incorporating the GAL’s findings

into its judgment, the youth court determined that the GAL was “experienced and qualified”

and “did a thorough and competent investigation.” We agree. Lee, the GAL, participated

in every youth court hearing and listened to testimony by Kirkley, Cavanagh, the foster

mother, and Sims. Further, unlike D.J.L., Lee provided a thirteen-page report and

recommendation on November 7, 2017, which included an extensive and detailed case

history of the court hearings and all visits/communications between the child, natural

parent(s), the DHS, and the foster parents, dating from April 17, 2015, to October 25, 2017.

With regard to the child’s well-being, the GAL’s report indicates specific knowledge of the

child’s development while in custody, stating:

[John] remains in the home of his foster family . . . where he was placed on
the date of custody, April 17, 2015, at the age of five months. [John] will turn
[three] years old . . . [and] will have celebrated all three (3) of his birthdays in
the State’s custody.

[John] is a happy, smart child. He can count to 20, knows most of his ABC’s
and his primary colors. He is very verbal[,] and his pediatrician says he is
more on the level of a 4-5 years old, according to the foster mother. He has
no known medical issues.

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[John] loves all things outdoors and his favorite thing is to help his foster dad,
who is a mechanic, do anything that requires working with tools. He is
bonded with the immediate and extended foster family and refers to them as
daddy, mama, sissy, nana, etc.

The report concluded, “[Kirkley] has had very few visits with the child since the date of

custody as he has been incarcerated. Currently, it is my understanding that he is serving a

three (3) year sentence. Due to his incarceration and lack of contact[,] the father does not

have a bond with the child.” Although Kirkley claims that the GAL’s conclusion indicates

that her knowledge of the case is simply that—just an “understanding”—nothing in the

evidence or Kirkley’s testimony contradicted the GAL’s findings. Lee also testified at the

hearing as to her findings in the report, and the testimony by the foster parent and Sims

corroborated the GAL’s report/case history.

¶27. At trial, Kirkley’s attorney did not object to the sufficiency of the investigation

conducted by the GAL; nor did he file any post-trial motions concerning the GAL

investigation or lack thereof. Consequently, because the issue is now raised for the first time

on appeal, the youth court never had an opportunity to address it. It is important to note that

the order appointing the GAL for purposes of the TPR hearing in this case was to represent

the “best interest” of the child and did not command a separate investigation from that

already conducted by DHS.

¶28. Accordingly, because the findings in the GAL’s report are consistent with the

evidence and Kirkley’s own testimony, we find that, in this instance, any alleged failure by

the GAL to visit with Kirkley or John independently does not warrant either vacating the

youth court’s termination of Kirkley’s parental rights or a remand for further proceedings.

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This argument is without merit.

B. Termination of Parental Rights Factors

¶29. Kirkley also contends the youth court’s conclusions concerning the termination of his

parental rights were not supported by clear and convincing evidence. We will address, in

turn, each of the factors discussed by the court in its findings.

i. Habitual Alcoholism and Drug Addiction

¶30. The youth court found in its April 19, 2016 order that Kirkley had “failed to complete

[alcohol and drug] treatment, and later was arrested on August 1, 2015.” Kirkley claims that

the youth court erred in finding that he suffered from alcoholism or drug addiction and that

he had failed to successfully complete alcohol and drug treatment programs.

¶31. Kirkley was arrested twice in April 2015 for possession of controlled substances. He

contends that his incarceration restricted his opportunities to comply with the court’s

requirement, but as CPS argues in its brief,

[Kirkley] did not remain incarcerated throughout the entire case. There were
several times that he was free and capable of showing [DHS] that he could
maintain a stable, drug free lifestyle. However, it was [his] choice[] to
continue to engage in criminal behavior and drug use that prevented him from
proving that he could maintain that lifestyle.

As the court noted, although Kirkley “was ordered to drug court and . . . was participating

in the love in action ministries in Laurel, MS,” the program’s director told the youth court

judge that Kirkley had left the program. The only evidence presented by Kirkley that he

completed any program was a certificate from a “Life Learning Program” while incarcerated

that was not approved by the court or CPS. Thus, we find no error in the youth court’s

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finding that Kirkley suffered from habitual alcoholism or drug addiction and failed to

complete alcohol/drug treatment.

ii. Unwillingness to Provide Reasonable Necessary
Food, Clothing, Shelter, or Medical Care

¶32. We further find no error in the youth court’s determination that Kirkley was

“unwilling to provide reasonably necessary food, clothing, shelter, or medical care for the

child.” In April 2015, while under the parents’ care, the child was found in a motel room

with controlled substances present. When asked at the November 2017 TPR hearing if he

agreed that he “ha[d] not been able to provide [the] child a stable, drug-free and violence-

free home environment because [he had] been incarcerated,” Kirkley replied, “Yes, ma’am.”

Kirkley’s pattern of criminal behavior and his failure to contribute to the child’s well-being

during the thirty-one months John was in the DHS’s custody constituted clear and

convincing evidence that Kirkley was unwilling to provide adequate care for the child.

iii. Failure to Exercise Reasonable Visitation or
Communication with Child

¶33. With regard to Kirkley’s claim that he was deprived of chances to interact or

communicate with the child, the DHS social worker, Sims, explained at the November 2017

hearing that the agency’s policy is not to take children to visit an incarcerated parent.

Subsequently, at the January 2018 hearing, when Sims was asked if she felt “that [DHS]

could have made any additional efforts as far as reunification with Mr. Kirkley,” she replied,

“With Mr. Kirkley, no. Again, as you see, he is still incarcerated, and we’re very limited

with what we can do.” The GAL’s report indicated that DHS representatives visited Kirkley

17
in Harrison County detention facilities in February and March 2017, but noted that “there

[was] no clear release date.” As Sims aptly noted at one of the hearings,“[I]t was not the

agency[’s] choice that Mr. Kirkley decided to be in and out of jail[.]” We find the court’s

determination that Kirkley “failed to exercise reasonable visitation or communication with

the child” is supported by the evidence.

iv. Abusive or Neglectful Conduct Causing Extreme
and Deep-seated Antipathy by the Child toward
the Parents

¶34. The youth court found that Kirkley was unable to sustain a relationship with his son

due to the child’s young age and Kirkley’s incarceration. Kirkley argues that his

incarceration cannot be the sole basis for finding his relationship with John was eroded or

non-existent, and he claims the relationship was “worsened by the youth court and [DHS].”

Noting his letters addressed to the youth court, Kirkley contends that he had made attempts

to establish a relationship with the child.

¶35. “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)).

For over a year prior to the TPR proceedings, John remained in DHS custody, with minimal

contact with his natural father due to Kirkley’s incarceration. At the time the termination

proceedings were initiated, Kirkley was still incarcerated, and John had been in foster care

for almost two years. As noted by the GAL in her report, John identified the foster parents

18
as his parents, calling them “daddy” and “mama.” The GAL further remarked in her

testimony that she was not sure that “the child would even recognize [Kirkley].”

¶36. In its findings of fact and conclusions of law, the youth court recognized that

“[a]lthough incarceration cannot be the sole basis for termination, the results, i.e. erosion or

non-existence of the relationship, can be considered a significant factor when determining

whether rights should be terminated.” (Citing In re Clark, 611 P.2d 1343, 1345 (Wash. Ct.

App. 1980)).7 We addressed a similar situation in In re K.D.G. II, 68 So. 3d 748, 753 (¶22)

(Miss. Ct. App. 2011), where the father had been incarcerated for three of the six years his

children were in the custody of the DHS. This Court found clear and convincing evidence

to support the youth court’s termination of parental rights, holding:

Here, the eroded relationships were a result of KDG’s actions. . . . [T]he youth
court provided KDG the opportunity to act as a father to his sons through
complying with the permanency order—an opportunity, the youth court found,
he totally walked away from. The youth court weighed this along with the
fact KDG had been out of jail for over a year and a half prior to the
permanency order without making significant efforts to communicate with or
support his sons.”

Kirkley’s illegal activities and continuous incarceration were of his own making; it was not

the fault of the court or the DHS. Further, we reiterate the CPS’s argument that Kirkley had

an opportunity to demonstrate that he “could maintain a stable, drug free lifestyle,” but he

continued to use drugs and “engage in criminal behavior.” Therefore, we find no manifest

error in the youth court’s determination that Kirkley’s absence and lack of communication

7
In Clark, 611 P.2d at 1345, the Court of Appeals of Washington held, “Mere
imprisonment of the father is not sufficient of itself for an order of deprivation, but it is not
a factor to be ignored.”

19
between him and his son had resulted in a substantial erosion of the parent-child

relationship.

¶37. Accordingly, we find the court did not err in finding “by clear and convincing

evidence” that it was in the child’s best interest to terminate Kirkley’s parental rights.

¶38. AFFIRMED.

CARLTON, P.J., GREENLEE AND LAWRENCE, JJ., CONCUR. WILSON,
P.J., AND McDONALD, J., CONCUR IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED IN PART
BY McDONALD AND McCARTY, JJ. McCARTY, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED IN PART
BY WESTBROOKS AND McDONALD, JJ.

WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:

¶39. I join Judge McCarty’s separate opinion that the summons triggers due process

concerns, while agreeing with the majority that jurisdiction is proper. I write separately to

address the other concerns raised by this case, finding portions of the decision of the youth

court to be manifestly wrong and unsupported by substantial, credible evidence. More

specifically, the guardian ad litem did not conduct a zealous investigation, and the

termination of parental rights was not supported by substantial evidence. Additionally, this

case presents the question—though no one raised it—when does the right to counsel attach

in abuse and neglect proceedings?

A. The right to counsel should attach at the beginning of youth court
proceedings.

¶40. This proceeding did not give true deference to the weight and lifelong effects it

would have on this family and families later to come. “The United States Supreme Court has

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unequivocally recognized that parental rights are a matter of fundamental constitutional

significance.” G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 335 (¶11)

(Miss. 2000) (citing Santosky v. Kramer, 455 U. S, 745 (1982)). “Parents have a liberty

interest, more precious than any property interest, in the care, custody, and management of

their children and families.” Id. “That interest is afforded great protection by the courts.”

Id. “Indeed, the United States Supreme Court has stated that few forms of state action are

so severe and so irreversible as termination of parental rights, leaving a parent with no rights

to visit or communicate with the child.” Id. Although labeled as a civil matter, a TPR

proceeding is comparatively punitive, leaving one to wonder when fundamental

constitutional protections attach to afford the indigent zealous and competent advocacy to

protect the liberty interest in the right to parent.

¶41. “The Sixth Amendment right to counsel is ‘offense’ specific and does not attach until

prosecution begins.” Howell v. State, 163 So. 3d 240, 253 (¶33) (Miss. 2014); Weeks v.

State, 804 So. 2d 980, 995 (¶55) (Miss. 2001) (citing McNeil v. Wisconsin, 501 U.S. 171,

174-77 (1991)). In McNeil, the United States Supreme Court explained, “The purpose of the

Sixth Amendment counsel guarantee—and hence the purpose of invoking it—is to protect

the unaided layman at critical confrontations with his expert adversary, the government, after

the adverse positions of government and defendant have solidified with respect to a

particular alleged crime.” McNeil, 501 U.S. at 177-78. Thus, the Sixth Amendment right

to counsel attaches once the government has initiated charges “with respect to a particular

alleged crime.” Id.

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¶42. Arguably, the Sixth Amendment right to counsel should also attach once adjudication

proceedings commence. Youth court adjudication proceedings can have punishments that

follow; therefore indigent defendants should be appointed counsel at the beginning of these

proceedings once the “prosecution begins.” The argument that the Sixth Amendment right

to counsel should not attach to youth court adjudication proceedings because they are civil

in nature cannot withstand attack. Youth court proceedings have vivid similarities to that of

criminal proceedings, such as a defendant and prosecutor, an alleged crime, and the possible

result of punishment. Youth court defendants are facing critical confrontations with an

expert adversary, the government, and should not be left unaided. Parents are often left

unaided until they face the most disastrous punishment of family law—termination of

parental rights. Although adjudicatory hearings do not lead directly to incarceration,

termination of parental rights is still punishment in nature.

¶43. The “appointment of counsel in termination proceedings, while wise, is not

mandatory and therefore should be determined by state courts on a case-by-case basis.”

K.D.G.L.B.P. v. Hinds Cnty. Dep’t of Human Servs., 771 So. 2d 907, 910 (¶12) (Miss. 2000)

(citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 34-35 (1982)). While appointment of

counsel has been determined to not be an absolute right by the United States Supreme Court,

Mississippi courts have gone a step further by creating expansive law granting indigent

persons the right to counsel in termination cases. 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

22
guardian in the proceeding. E.K. v. Miss. Dep’t of Child Prot. Servs., 249 So. 3d 377, 382

(¶19) (Miss. 2018). The act can be commended, but we must now encourage our courts to

go even further by appointing counsel to the indigent for all adjudication proceedings. One

of the most important factors to be considered in applying the standards for court appointed

counsel is whether the presence of counsel would have made a determinative difference.

K.D.G.L.B.P., 771 So. 2d at 910 (¶12). Being represented by counsel could arguably always

make a determinative difference. The manifest error that occurred in this case arguably could

have been avoided if Kirkley would have been given the aid of counsel at an earlier stage.

B. The investigation by the guardian ad litem was inadequate.

¶44. In addition to the previously mentioned summons Judge McCarty addresses, the

investigation by the guardian ad litem (GAL) raises great concern. The GAL conducted an

investigation that was below standards and did not display zealous advocacy. Our case law

states that guardians ad litem do not have an option to perform or not perform, rather they

have an affirmative duty to zealously represent the child’s best interest. M.J.S.H.S. v.

Yalobusha Cnty. Dep’t of Human Servs., 782 So. 2d 737, 740 (¶14) (Miss. 2001). “[A]

guardian ad litem appointed to investigate and report to the court is obligated to investigate

the allegations before the court, process the information found, report all material

information to the court, and (if requested) make a recommendation.” S.G. v. D.C., 13 So.

3d 269, 282 (¶57) (Miss. 2009). “However, the guardian ad litem should make

recommendations only after providing the court with all material information which weighs

on the issue to be decided by the court, including information which does not support the

23
recommendation.” Id. “The court must be provided all material information the guardian ad

litem reviewed in order to make the recommendation.” Id. In this instance, the GAL

presented the court with information that the court was already privileged to. She simply

appeared in court, documented what occurred, and labeled it as an investigation. This GAL

did not even present documentation to support her recommendation or findings such as a

reporting on the home of the foster parents, documentation attesting to what she claims the

pediatrician reported, or documentation reflecting the drug screening results. The majority

highlights that this GAL submitted a thirteen-page report, but this report is completely

unreasonable for a case that spans over three years. The report should have provided much

more evidence and highlighted a thorough investigation instead of regurgitating a timeline

of courtroom events. She did not take time to interview the birth parents or minor child. The

Supreme Court of Mississippi has previously stated, “It is hard for this Court to imagine that

a guardian ad litem, without ever visiting the children he/she represents, can be fully

informed as to their best interests.” M.J.S.H.S., 782 So. 2d at 741 (¶16). The Mississippi

Supreme Court has overturned cases “[b]ecause guardian ad litem failed to fully represent

the child’s best interest.” Id. For the above mention reasons, I would reverse and remand the

case.

C. There was not clear and convincing evidence to support a TPR.

¶45. The youth court also erred when finding that there was clear and convincing evidence

necessary for terminating Kirkley’s parental rights. Mississippi Code Annotated section 93-

15-115 (Rev. 2015) outlines the guidelines for involuntary termination when a child is in

24
custody or under supervision of the Department of Child Protection Services (CPS), stating:

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;

(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.

¶46. Although the minor child was adjudicated neglected and within the care, custody, and

supervision of the CPS, reasonable efforts were not made to diligently assist Kirkley with

complying with the service plan. I am not dismissive of the fact that Kirkley did have a

substance abuse problem and struggled with the service plan, but, we must give credit to the

fact that he did avail himself to many rehabilitation programs while incarcerated. Substance

abuse and addiction are medical problems that do not dissipate simply because a service plan

25
is issued. Although Kirkley initially struggled with his rehabilitation, as many do, he made

considerable efforts to regain sobriety and to be actively engaged in matters concerning his

child by constantly calling and writing the court. The service plan was not amended to

correlate with the restraints of his incarceration that would have allowed for deference to be

given to the programs he completed during his incarceration.

¶47. In addition, the grounds set forth in section 93-15-121 were not established by clear

and convincing evidence. The youth court based its ruling on the following grounds:

(c) The parent is suffering from habitual alcoholism or other drug addiction
and has failed to successfully complete alcohol or drug treatment;

(d) The parent is unwilling to provide reasonably necessary food, clothing,
shelter, or medical care for the child; reasonably necessary medical care does
not include recommended or optional vaccinations against childhood or any
other disease;

(e) The parent has failed to exercise reasonable visitation or communication
with the child;

(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;

Miss. Code Ann. § 93-15-121 (Rev. 2015).

¶48. Again, Kirkley initially struggled with a drug addiction but there is clear and

convincing evidence that he successfully completed alcohol and drug treatment while

incarcerated. The youth court simply deemed this unsatisfactory because the programs were

not the initial programs of service agreement, but made no efforts to accommodate the

situation at hand by amending the plan to reflect programs available to Kirkley. Youth courts

are known to modify service plans for individuals that relocate; Kirkley simply relocated to

26
a detention facility and should not have been treated differently due to his location.

¶49. The statute is also very clear that the parent must be unwilling to provide necessary

food, clothing, shelter, or medical care for the child. There is an even clearer distinction

between one’s unwillingness and inability. Kirkley was unable to provide for his son while

incarcerated; but despite this, he constantly wrote the court seeking information about the

foster parents to provide assistance to his son. Unfortunately, neither the court nor CPS

responded to his letters.

¶50. Kirkley was also unable to visit or communicate with the minor child. CPS does not

take children to visit parents that are incarcerated; nor were caretakers of the minor willing

to call or Skype Kirkley so that the two would be able to visit. The child’s age was not a

hindrance in facilitating a telephonic visitation because the GAL reported that the three-year-

old child was smart and verbal with an ability to count to twenty and recite the alphabet and

colors. CPS informed Kirkley that he could arrange visitation through the youth court. He

was unsuccessful because he did not receive a response when he contacted the youth court.

¶51. There was no deep-seated antipathy between the child and father—only an erosion

of the relationship furthered by personnel that handled this case who blocked all efforts of

communication and visitation due to Kirkley’s incarceration that was near an end. Due to

the child’s early age, the relationship could have easily been rekindled.

¶52. Simply put, the court became impatient and unsatisfied with Kirkley’s progress and

rushed this TPR proceeding along, finding the foster parents to be more fitting because they

had the opportunity to develop a relationship with the child. The Mississippi Supreme Court

27
has never allowed the termination of parental rights only because others may be better

parents. M.L.B. v. S.L.J., 806 So. 2d 1023, 1029 (¶11) (Miss. 2000).

¶53. For these reasons, I respectfully concur in part and dissent in part.

McDONALD AND McCARTY, JJ., JOIN THIS OPINION IN PART.

McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:

¶54. The Jackson County Youth Court summons violates state law on its face, and those

violations trigger serious due process implications for parents. We should not hold that this

error-filled document “substantially complies” with anything—not the statute, which is

plainly deviates from, or our precedent, which it ignores.

¶55. This point is important because it goes beyond Kirkley’s interest in this case. “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.” Troxel v. Granville, 530 U.S. 57, 65 (2000). And “[i]n Mississippi . . . there

exists a strong presumption in favor of preserving parental rights.” In re A.M.A., 986 So.

2d 999, 1009 (¶22) (Miss. Ct. App. 2007). So we need to be accurate at every phase of the

termination of parental rights process in order to safeguard the liberty interest parents have

in their children.

¶56. In accord with this settled law, the Legislature has decided parents in Youth Court

proceedings have a right to counsel. Miss. Code Ann. § 43-21-201 (Rev. 2015). The

Supreme Court has strongly enforced this due process requirement and reversed when it was

not honored. See In re I.G., 467 So. 2d 920, 923 (Miss. 1985); E.K. v. Miss. Dep’t of Child

28
Prot. Servs., 249 So. 3d 377, 383 (Miss. 2018).

¶57. To safeguard that liberty interest, the Legislature put together a form to use when

summoning a parent. It covers all the bases, and in relevant part states:

You have a right to be represented by an attorney. You are requested to
immediately notify the youth court of the name of your attorney. If indigent,
the above-named child has a right to have an attorney appointed for [them]
free of charge, and should immediately apply to the youth court for such
appointed counsel. You have a right to subpoena witnesses in your behalf.

Miss. Code Ann. § 43-21-503 (Rev. 2015).

¶58. Jackson County uses exactly none of the statute’s form language. Instead of this plain

and unambiguous language, Jackson County only issues the following notice:

IMPORTANT NOTICE: [PARENTS] YOU MUST BE REPRESENTED
BY AN ATTORNEY IN THIS CASE UNLESS THE RIGHT TO
LEGAL REPRESENTATION IS WAIVED.

¶59. To fulfill the law, a reasonable party would simply use the form provided by the

Legislature. The summons Jackson County used wholly disregards the language of the

statute and does not come close to the requirement that it “substantially comply,” which it

is bound to do by law by the Legislature’s usage of the word “shall.” See E.K., 249 So. 3d

at 383 (¶21) (holding that the word “may” is discretionary and that “shall” is mandatory).

The summons plainly and obviously does not follow the guidance of section 43-21-503.

¶60. Ultimately, this improper summons did not harm the appellant in this case, as he was

later appointed counsel. I agree that it may not have impacted the father here or require

reversal in this appeal. Nonetheless, the violations of due process contained in this

summons will foreseeably have an impact on others in the future—and in this most sensitive

29
kind of all proceedings.

¶61. I agree with the rest of the majority’s conclusions. However, because the summons

used by the Jackson County Youth Court not only fails to “substantially comply” with the

statute but also materially deviates from it, I respectfully dissent in part.

WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION IN PART.

30