In the Interest of A.R.H., a Minor: Redonn Malone v. Jackson County Department of Child Protection Services

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00420-COA

IN THE INTEREST OF A.R.H., A MINOR: APPELLANT
REDONN MALONE

v.

JACKSON COUNTY DEPARTMENT OF CHILD APPELLEE
PROTECTION SERVICES

DATE OF JUDGMENT: 02/28/2023
TRIAL JUDGE: HON. STACIE ELIZABETH ZORN
COURT FROM WHICH APPEALED: JACKSON COUNTY YOUTH COURT
ATTORNEY FOR APPELLANT: JESSICA LYNN BATES
ATTORNEY FOR APPELLEE: MICHAEL WILSON BRELAND
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: AFFIRMED - 10/22/2024
MOTION FOR REHEARING FILED:

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. Redonn Malone appeals from an order of the Jackson County Youth Court that

allowed the Jackson County Department of Child Protection Services (CPS) to bypass

reasonable efforts toward reunification of him with his only child, A.H.1 The youth court had

adjudicated the child, who was born drug-addicted, as neglected because of the actions of his

mother, Latisha H.2 At the time of A.H.’s birth, Malone was incarcerated. After a

disposition hearing, the youth court that held Malone’s violent criminal history constituted

1
We use initials to protect the child’s privacy.
2
Latisha is not a party to this appeal.
sufficient aggravated circumstances under Mississippi Code Annotated section

43-21-603(7)(c) (Supp. 2016)3 to preclude reasonable efforts for reunification of the child

with Malone.

¶2. On appeal, Malone argues that the youth court erred in expanding “aggravated

circumstances” under section 43-21-603(7)(c) to include the “violent criminal history” of the

father, even when the crimes did not involve the child. Malone further argues that in making

its finding of aggravated circumstances, the youth court improperly relied on information

outside the record.

¶3. After our review, we find no error. We therefore affirm the youth court’s order.

FACTS

¶4. In November 2022, Latisha gave birth to A.H. At the time of A.H.’s birth, Latisha

tested positive for cocaine, and A.H.’s urine screen was positive for cocaine and fentanyl.

At the time of A.H.’s birth, his father, Malone, was incarcerated in the Jackson County Adult

Detention Center on charges of felony aggravated assault and felony bond revocation.

Latisha and Malone were not married.

¶5. While A.H. was still in the hospital, the youth court entered an emergency custody

order placing A.H. in CPS’s custody. The youth court also appointed a guardian ad litem

(GAL) for A.H. and set a shelter hearing for November 16, 2022.

¶6. At the shelter hearing, the youth court heard testimony from Latisha and Malone, as

well as CPS worker Naomi McNeely and Youth Court Intake Unit representative Katy

3
We quote subsection (7)(c) of the statute in full in our analysis below.

2
Frazier. McNeely and Frazier both recommended that A.H. remain in CPS’s custody until

it was confirmed that Malone was A.H.’s father. The youth court agreed and entered an

order stating that A.H. would remain in CPS’s custody. The youth court also ordered DNA

testing for Malone and A.H. to confirm A.H.’s paternity. The youth court entered a separate

order referring the matter to the youth court prosecutor’s office for formal filing of a

neglected child complaint.

¶7. The following day, the Jackson County Youth Court prosecutor filed a one-count

petition in youth court alleging that A.H. was a neglected child because “the mother of said

minor, Latisha . . . , suffer[ed] from extensive substance use and/or abuse issues,” including

the use and abuse of “cocaine and fentanyl, causing said substances to be in [A.H.’s] system

at the time of birth.”

¶8. On December 12, 2022, the youth court conducted an adjudicatory hearing on the

youth court prosecutor’s petition. Malone was transported from the detention center and was

present for the hearing; however, Latisha failed to appear. The record reflects that Malone

and A.H.’s DNA test was set for the following day. At the hearing, the youth court asked

Malone if he agreed with the allegations that A.H. was a neglected child. The youth court

explained to Malone that he could agree or disagree if he personally knew the facts, or he

could just say “no contest” if he did not personally know the facts. Malone stated “no

contest” to the allegations in the petition. The youth court then reset the matter for December

28, 2022.

¶9. The youth court reconvened the adjudication hearing on December 28, 2022. The

3
record reflects that Malone was present, but Latisha again failed to appear despite CPS’s

attempts to contact her. The youth court accordingly found that Latisha had voluntarily made

herself absent from the proceedings.

¶10. At the hearing, CPS worker McNeely outlined the reasons that A.H. was taken into

custody, explaining that a few days before giving birth Latisha tested positive for cocaine,

and immediately after birth A.H. tested positive for cocaine and fentanyl. McNeely also

stated that Malone was currently incarcerated in the detention center for felony aggravated

assault and felony bond revocation. The youth court then proceeded to adjudicate A.H. as

neglected.

¶11. The youth court held a disposition hearing on January 11, 2023. At the hearing, the

youth court was informed that the DNA test results confirmed Malone as the biological father

of A.H. The court continued the case to January 23, 2023, so that Malone could consult with

his court-appointed attorney.

¶12. On January 23, 2023, the court reconvened A.H.’s disposition hearing. After

determining that reunification efforts with Latisha should be bypassed, the youth court

considered reunification plans for Malone. With regard to Malone, CPS worker McNeely

recommended that he enter into a service plan with CPS and complete the rehabilitative tasks

set forth by CPS. The service plan recommended a permanency plan of reunification with

the parents, along with a concurrent plan of custody with a relative.

¶13. Youth court employee Frazier stated, however, that she did not agree with CPS’s

service plan. Instead, Frazier requested that the court bypass any reasonable efforts toward

4
reunification of A.H. with Malone based on Malone’s “extensive history” of “severe violent

crimes” dating back to a domestic violence conviction in 1997 in California. Frazier

proceeded to detail several of Malone’s crimes, including a conviction in Nevada in 2004 for

involuntary manslaughter and several charges between 2013 and 2021 in Mississippi. Frazier

also described domestic violence incidents involving Latisha in February, April, May, and

July of 2022. Frazier clarified that in the April 2022 incident, Latisha and Malone each

claimed the other was the aggressor. Frazier also said that Malone had been indicted for

aggravated assault and use of a deadly weapon for stabbing an individual four times at a

Lowe’s store in September 2021. Frazier presented the surveillance footage of the incident,

which was entered into evidence.4 At the time of the disposition hearing, Malone was

incarcerated in connection with the September 2021 aggravated-assault charges. Frazier

argued that it would not be in A.H.’s best interest for him to be placed in a home

environment where domestic violence had occurred.

¶14. The GAL agreed with Frazier’s recommendation to bypass reasonable efforts toward

reunification of A.H. with Malone. The GAL opined that based on Malone’s “very troubling

extensive history” of violence, including domestic violence, “[i]t would be in [A.H.’s] best

interest that he not be reunified with [Malone].” The GAL also sought to enter criminal

records for both Latisha and Malone into evidence. Malone’s counsel objected, but the court

4
During the hearing, the youth court gave Malone’s counsel the opportunity to
review the surveillance footage. After reviewing the footage, Malone’s counsel objected
to its relevancy, arguing that section 43-21-603(7)(c) refers to violence toward a child, and
the incident at Lowe’s did not involve violence toward a child. It is unclear from the record
when the court ruled on Holtz’s objection, but a disc containing the surveillance footage
does appear in the record as evidence.

5
made no ruling on the objection.5

¶15. The youth court asked Malone’s attorney for his position on bypassing reasonable

efforts of reunification of A.H. with Malone.6 Malone’s counsel argued that according to the

operative words in section 43-21-603(7)(c), parental reunification can only be bypassed at

the disposition stage where the aggravated circumstances involved a child. Malone’s counsel

asserted that none of the crimes detailed by Frazier involved a child, so “the plain reading of

the statute . . . simply does not apply.” Malone’s counsel also objected to the consideration

of Malone’s criminal record as an aggravating circumstance precluding reunification because

Malone had no notice that the issue of reunification would be contested.

¶16. The youth court also questioned CPS about how reunification could work with

someone who was incarcerated. CPS worker McCrory responded:

It’s policy that our first plan be reunification, to work with the family to . . .
put services in the home to help with the issues that they have. However, the
court can rule how, but we have to work with reunification of the parent unless
he did something to a child. That’s our policy.

5
The exhibit list does not reflect any police records entered into evidence at the
hearing. However, the record contains “Booking Listing Reports” for both Latisha and
Malone. These documents were filed with the youth court on January 5, 2023. Although
the GAL indicated that these records were from the Pascagoula Police Department, our
review of these documents shows that the majority of the reports are from the Moss Point
Police Department.
6
During the hearing, the youth court referred to two statutes that deal with parental
rights and reasonable efforts for reunification: section 43-21-603(7)(c) and Mississippi Code
Annotated section 93-15-117 (Rev. 2018). Section 43-21-603(7)(c) provides the conditions
for bypassing parental reunification at the disposition-hearing stage in youth court
proceedings after a child has been found to be neglected. Section 93-15-117, however, deals
with parental reunification in a termination-of-parental-rights proceeding. Because this
matter concerns the youth court’s decision to bypass reasonable efforts for reunification at
the disposition-hearing stage, section 43-21-603(7)(c) applies.

6
¶17. The youth court acknowledged that Malone was excited about being a father for the

first time in his life, but the court explained that it was ultimately tasked with making

decisions that are in the best interests of A.H. The youth court stated that it needed to decide

whether to adopt the service plan recommended by CPS or whether to bypass reasonable

efforts toward reunification. The youth court ruled that it would “take the disposition under

advisement pending review and consideration of any case law or briefs provided by [the

GAL] or [Malone’s counsel] on the issue of bypass of reasonable efforts or aggravated

circumstances.”

¶18. On February 28, 2023, the youth court issued its disposition order. The youth court

stated that it accepted CPS’s recommendation to bypass reasonable efforts for Latisha;

however, the youth court declined to accept CPS’s recommendation to reunify A.H. with

Malone. The youth court found that pursuant to section 43-21-603(7)(c), “aggravated

circumstances exist in this matter such that reasonable efforts to maintain the child within the

home of his father shall not be required.” The youth court explained that Malone “has an

extensive violent criminal history as well as history of drug use . . . . [And [h]e is presently

incarcerated awaiting trial on aggravated assault.” The youth court then detailed Malone’s

criminal history as follows:

• In 1997, he was found guilty of domestic violence in California.

• In 2002, he was found guilty of possession of drug paraphernalia and
forgery in California.

• In 2005, he was found guilty of voluntary manslaughter with use of a
deadly weapon in Nevada.

7
• In 2013, he was found guilty of possession of paraphernalia.

• In 2014, he was found guilty of possession of a crack pipe.

• In 2015, he was found guilty of two separate instances of possession of
a crack pipe and one instance of disorderly conduct for failure to
comply with law enforcement.

• In 2016, he was found guilty of possession of a crack pipe.

• In 2020, he overdosed on heroin.

• In 2020, he was charged with disorderly conduct and resisting arrest.

• In 2021, he was found guilty of simple possession of marijuana and a
glass pipe with white residue.

• In 2021, he was indicted for aggravated assault with a deadly weapon.
He was out on bond, which was revoked when he was subsequently
charged with domestic violence. He remains at the Jackson County
Adult Detention Center awaiting trial.

• In 2022, he was found guilty of domestic violence, public drunk, and
resisting arrest.

• In 2022, he was also charged with three separate counts of domestic
violence.

• In 2023, he appeared in court with a black eye as a result of a fight at
the ADC.

¶19. The youth court ultimately found that Malone’s violent criminal history was extensive

enough to warrant aggravated circumstances sufficient to bypass reasonable efforts for

reunification between A.H. and Malone. The youth court explained that A.H.’s placement

in Malone’s home after Malone’s release from incarceration “would be contrary to the

welfare and best interests of [A.H.].” The youth court ruled that A.H. would remain in CPS

custody and set a permanency hearing for March 27, 2023.

8
¶20. On March 27, 2023, the youth court held a permanency hearing to determine A.H.’s

placement. CPS worker McNeely presented the proposed permanency plan for A.H., which

was to terminate Malone’s parental rights and ultimately place A.H. with a relative.

¶21. Malone and his counsel were present at the hearing and objected to the court’s

February 28, 2023 disposition order bypassing reunification with Malone. The youth court

restated its decision that Malone’s extensive violent criminal history was an aggravated

circumstance that warranted bypassing reasonable efforts to reunify A.H. with Malone. The

youth court explained that prior to making its determination, it considered the extensive

briefs provided by counsel. The youth court then ordered CPS to proceed with the necessary

paperwork to begin the process of terminating Malone’s parental rights. The court adopted

CPS’s proposed permanency plan of termination of rights and adoption with a concurrent

plan for placement with a relative.

¶22. On March 27, 2023, Malone pled guilty to aggravated assault in circuit court and was

sentenced to serve fifteen years in custody and five years of post-release supervision. On that

same day, Malone appealed the youth court’s February 28, 2023 disposition order bypassing

reunification efforts.

STANDARD OF REVIEW

¶23. “Our standard of review in youth court cases is limited.” Kevin v. Miss. Dep’t of

Child Prot. Servs., 341 So. 3d 1014, 1018 (¶9) (Miss. Ct. App. 2022). “The youth court

judge sits as the trier of fact.” Id. This Court will only reverse a youth court’s findings “if

reasonable men could not have found as the youth court did by a preponderance of the

9
evidence[.]” In re S.A.M., 826 So. 2d 1266, 1274 (¶17) (Miss. 2002).

DISCUSSION

I. Aggravated Circumstances Pursuant to Section 43-21-603(7)(c)

¶24. Malone argues that the youth court failed to correctly apply the statutory criteria for

bypassing reunification at the disposition stage of the youth court proceedings. Specifically,

Malone argues that the youth court erred in expanding “aggravated circumstances” in

43-21-603(7)(c) to include his “violent criminal history,” where that criminal history did not

involve crimes against A.H. or any other child.

¶25. After the youth court adjudicates a child neglected,7 the youth court will then hold a

disposition hearing to determine if reasonable efforts to reunify the child with his family can

be undertaken or should be bypassed.8 We recognize that from the time a child is taken into

CPS custody and placed into foster care, CPS is statutorily required to make reasonable

efforts to reunite the family. However, at the disposition stage of youth court proceedings,

a youth court may bypass reasonable efforts to reunite a child who has been adjudicated

neglected when certain criteria have been met. Section 43-21-603(7)(c) states:

(c) Reasonable efforts to maintain the child within his home shall not be
required if the court determines that:

(i) The parent has subjected the child to aggravated
circumstances, including, but not limited to,
abandonment, torture, chronic abuse and sexual abuse; or

(ii) The parent has been convicted of murder of another child

7
See Miss. Code Ann. § 43-21-551 (Rev. 2021).
8
See Miss. Code Ann. § 43-21-601 (Rev. 2021).

10
of that parent, voluntary manslaughter of another child of
that parent, aided or abetted, attempted, conspired or
solicited to commit that murder or voluntary
manslaughter, or a felony assault that results in the
serious bodily injury to the surviving child or another
child of that parent; or

(iii) The parental rights of the parent to a sibling have been
terminated involuntarily; and

(iv) That the effect of the continuation of the child’s residence
within his own home would be contrary to the welfare of
the child and that placement of the child in foster care is
in the best interests of the child.

Miss. Code Ann. § 43-21-603(7)(c) (emphasis added).9 To be clear, the language of section

43-21-603(7)(c) requires that the proof establish one of the criteria in subsections (i)–(iii) and

the best interests of the child criteria in subsection (iv) before reunification efforts may be

bypassed.

¶26. The record reflects that at A.H.’s disposition hearing, youth court employee Frazier

requested that the youth court bypass any reasonable efforts toward reunification of A.H.

with Malone based on Malone’s “extensive history” of “severe violent crimes.” Frazier

provided the youth court with details of Malone’s criminal history, including several

domestic violence incidents involving A.H.’s biological mother. Frazier opined that it would

not be in the best interests of A.H. to be placed in a home environment where domestic

violence had occurred, and the GAL agreed.

¶27. The youth court ultimately entered a disposition order finding that aggravated

9
As stated above, the criteria and level of proof needed for bypassing reunification
efforts at a disposition hearing should not be confused with the criteria and proof needed to
terminate parental rights under section 93-15-117. See supra note 6.

11
circumstances existed pursuant to section 43-21-603(7)(c) that allowed the youth court to

bypass reasonable efforts to reunify A.H. with Malone. In the order, the youth court

explained that Malone “has an extensive violent criminal history as well as history of drug

use. He is presently incarcerated awaiting trial on aggravated assault.” The youth court

included a list of Malone’s criminal history in the order, which we listed in full above.

¶28. The youth court acknowledged that “being incarcerated or having a criminal history

is not per se reason to bypass reasonable efforts”; however, the youth court determined that

“the violent history of this father is so extensive as to warrant a finding of aggravated

circumstances in this matter as placement in the father’s home, if, and when he is released

from incarceration, would be contrary to the welfare and best interests of the minor child.”

In making its determination that reasonable efforts for reunification with Malone were not

required, the youth court cited C.P. v. Lowndes Cnty. Dep’t of Child Prot. Servs., 349 So. 3d

1209, 1221 (¶35) (Miss. Ct. App. 2022), and acknowledged that “[t]he paramount concern

in determining the proper disposition is the best interest of the child, not reunification of the

family.”

¶29. While factually different from the case at hand, this Court’s opinion in C.P. provides

clarity and guidance in understanding the aggravated circumstances criteria as set forth in

section 43-21-603(7)(c), which is the issue currently before us. In C.P., the youth court

adjudicated the minor child, Alexis, neglected. Id. at 1212 (¶3). At the disposition hearing,

the youth court found that pursuant to section 43-21-603(7)(c), aggravated circumstances

existed that allowed the court to bypass reasonable efforts to maintain Alexis in the family

12
home, including both parents’ “intellectual and mental limitations.” Id. at 1213 (¶4).

Eventually, the youth court terminated the parents’ rights. Id. at 1219 (¶26). Alexis’s parents

appealed and argued, in part, that the youth court “erred in interpreting aggravated

circumstances to include [the parents’] intellectual and mental limitations.” Id. at 1222 (¶37).

¶30. On appeal, this Court found that the youth court did not err in bypassing reasonable

efforts for reunification between Alexis and her parents under section 43-21-603(7)(c). Id.

This Court explained:

We agree that intellectual disabilities cannot be grouped in the same category
with extreme aggravated circumstances such as abandonment, torture, chronic
abuse, or sexual abuse as listed in section 43-21-603(7)(c)(i). However, the
statute is not an exhaustive list of aggravated circumstances, hence the words
“including, but not limited to.” Although it cannot be grouped with that
extreme category of aggravated circumstances, a severe intellectual disability
such as [the mother’s] is still an aggravated circumstance nonetheless. At trial,
[the mother] testified that she had just turned forty years old. However,
despite this, [the doctor] stated that [the mother] functioned on the behavioral
level of an eleven-year-old. In addition, [the social worker] testified that [the
mother] was unable to meet her own basic needs, let alone the basic needs of
a minor child. Because of [the mother’s] severe intellectual disability, we hold
that the youth court did not err in finding that placement within the parents’
home would be contrary to the welfare and best interests of Alexis. Moreover,
given the aggravating circumstances and the other evidence in the record that
placement of Alexis in the parents’ home was contrary to the child’s welfare,
we hold that the youth court did not err in determining that reasonable efforts
for reunification between Alexis and her parents under [section] 43-21-
603(7)(c) was not required.

Id. (emphasis added).

¶31. In the case before us, we find that the youth court, as the trier of fact, was within its

discretion to determine that Malone’s extensive criminal history constituted aggravated

circumstances under the statute. It is clear from our precedent that the criteria listed in

13
section 43-21-603(7)(c)(i) “is not an exhaustive list of aggravated circumstances[.]” Id. It

is also clear that “[t]he paramount concern in determining the proper disposition is the best

interest of the child, not reunification of the family.” Id. at 1221 (¶35); see also In re S.A.M.,

826 So. 2d at 1275 (¶19) (“[T]he polestar consideration in determining disposition is the best

interest of the child.”). The disposition order in this case reflects that the youth court

followed statutory guidelines in making its decision to bypass reasonable efforts to reunify

A.H. with Malone: the youth court found the existence of aggravated circumstances under

subsection (i) and also considered A.H.’s best interests under subsection (iv).

¶32. Based on the foregoing, we find that the youth court did not err in determining that

reasonable efforts for reunification of Malone with A.H. were not required under section

43-21-603(7)(c). We therefore affirm the youth court’s disposition order.

II. Testimony and Evidence from the Disposition Hearing

¶33. Malone next asserts that in making its determination as to A.H’s disposition, the youth

court erred in considering information outside the record—specifically, Malone’s prior

convictions and alleged crimes.

¶34. Section 43-21-603(2) governs the testimony and evidence that can be presented at

disposition hearing:

All testimony shall be under oath unless waived by all parties and may be in
narrative form. The court may consider any evidence that is material and
relevant to the disposition of the cause, including hearsay and opinion
evidence. At the conclusion of the evidence, the youth court shall give the
parties an opportunity to present oral argument.

(Emphasis added). When reviewing a youth court’s disposition order, this Court “considers

14
all the evidence before the youth court in the light most favorable to the State.” Kevin, 341

So. 3d at 1019 (¶9).

¶35. The record reflects that the only exhibit entered into evidence at the disposition

hearing was the judgment terminating Latisha’s parental rights to another child not involved

in the proceeding before us. However, the youth court docket shows that on January 5, 2023,

prior to the disposition hearing, fifty-three pages of booking information and incident reports

involving Malone were filed in the youth court, as well as Malone’s police report from Las

Vegas, Nevada. The fifty-three pages of booking information for Malone includes a

“booking list report” of offenses from November 2014 through July 2022 from the Jackson

County Sheriff’s Office, the Pascagoula Police Department, and the Moss Point Police

Department. The booking list report includes Malone’s arrests for domestic violence and

aggravated assault.

¶36. At the January 23, 2023 disposition hearing, youth court employee Frazier detailed

several of Malone’s crimes, including his 2004 involuntary manslaughter conviction in

Nevada and various charges in Mississippi from 2013 through 2021, as well as Malone’s

indictment for aggravated assault and use of a deadly weapon stemming from an incident in

September 2021. As stated, at the time of the disposition hearing, Malone was incarcerated

in connection with the September 2021 aggravated assault charges. Frazier also described

four domestic violence incidents in 2022 involving Latisha. The record shows that Frazier

presented the surveillance footage of the September 2021 incident at Lowe’s. The record

shows that this footage was entered into evidence; however, the exhibit list from the January

15
23, 2023 disposition hearing does not list the footage as an exhibit. The GAL also sought

to enter criminal records for both Latisha and Malone, purportedly referencing the booking

information filed in the youth court on January 5, 2023.

¶37. As stated, section 43-21-603(2) allows the youth court to “consider any evidence that

is material and relevant to the disposition of the cause, including hearsay and opinion

evidence.” We find that the evidence and testimony regarding Malone’s extensive criminal

history was material and relevant to the disposition hearing, especially in light of the fact that

our “paramount concern in determining the proper disposition is the best interest of the

child[.]” C.P., 349 So. 3d at 1221 (¶35).

¶38. Malone also argues that because the “documentation and information” of his alleged

crimes was not testified to or entered into evidence, he was deprived of his ability to address

those allegations and claims at the disposition hearing. However, the transcript from the

disposition hearing refutes Malone’s argument. Malone was represented by counsel at the

disposition hearing, and the transcript shows that Malone’s counsel objected to the admission

of Malone’s criminal records into evidence. Additionally, after reviewing the surveillance

footage of the September 2021 incident at Lowe’s, Malone’s counsel objected to its

relevancy, arguing that section 43-21-603(7) refers to violence toward a child, and the

Lowe’s footage did not involve that kind of violence.

¶39. After reviewing the record and transcript, and keeping in mind the broad discretion

granted to youth courts by section 43-21-603(2) regarding the evidence and testimony that

can be presented and considered at disposition hearings, we find no error.

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CONCLUSION

¶40. Because we find no error, we affirm the youth court’s disposition order.

¶41. AFFIRMED.

BARNES, C.J., LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR.
WILSON, P.J., AND WESTBROOKS, J., DISSENT WITHOUT SEPARATE
WRITTEN OPINION. McDONALD, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY WESTBROOKS AND McCARTY, JJ.; WILSON, P.J., JOINS
IN PART. WEDDLE, J., NOT PARTICIPATING.

McDONALD, J., DISSENTING:

¶42. I respectfully dissent from the majority opinion, which deprives Malone of ever

having a relationship with his only child, because, in my opinion, the youth court did not

correctly apply the criteria for bypassing reunification at the disposition stage of the

proceedings as set out in Mississippi Code Annotated section 43-21-603(7)(c) (Rev. 2021).

Both the youth court and the majority mistakenly rely on C.P. v. Lowndes County

Department of Protection Services, 349 So. 3d 1209 (Miss. Ct. App. 2022), and erroneously

eliminate the statutorily required analysis for bypassing reunification at the disposition stage.

¶43. The youth court statutes outline the legal proceedings for handling neglected or

abused children, including the filing of a petition alleging neglect,10 a hearing to adjudicate

whether the child is neglected or abused,11 a dispositional hearing to determine if reasonable

10
Mississippi Code Annotated sections 43-21-451 to 509 (Rev. 2021) address filing
a petition and issuing summonses.
11
Mississippi Code Annotated sections 43-21-552 to -561 (Rev. 2021) address the
adjudication hearing.

17
efforts to reunify the family in the family’s home can be undertaken or should be bypassed,12

and a permanency hearing to determine the future placement of the child.13 After these steps

are completed, the youth court may proceed to consider a petition to terminate a parent’s

rights, if necessary, under Mississippi Code Annotated section 93-15-117 (Rev. 2021).

¶44. From the time a child is taken into CPS custody and placed into foster care, CPS is

statutorily required to make reasonable efforts to reunite the family under Mississippi Code

Annotated section 43-15-13(2) (Rev. 2023), which provides:

[T]he Department of Child Protection Services shall establish a foster care
placement program for children whose custody lies with the department, with
the following objectives:
....

(b) Preventing the unnecessary separation of children from their families by
identifying family problems, assisting families in resolving their problems and
preventing the breakup of the family where the prevention of child removal is
desirable and possible when the child can be cared for at home without
endangering the child’s health and safety;

(c) Remedying or assisting in the solution of problems that may result in the
neglect, abuse, exploitation, commercial sexual exploitation, human trafficking
or delinquency of children; [and]

(d) Restoring to their families children who have been removed, by the
provision of services to the child and the families when the child can be cared
for at home without endangering the child’s health and safety . . . .

(Emphasis added).

¶45. At a disposition hearing, the youth court must determine whether these efforts of

12
Mississippi Code Annotated section 43-21-603(c)(7) addresses disposition hearing
procedures.
13
Mississippi Code Annotated section 43-21-613(3)(a) addresses permanency hearing
procedures.

18
reunification should be continued or bypassed. Pursuant to section 43-21-603(7)(a)(i) any

disposition order bypassing reunification efforts shall specifically find that reasonable efforts

have been made to maintain the child within his own home, but that the circumstances

warrant his removal, and there is no reasonable alternative to custody.

¶46. Section 43-21-603(7)(c) sets out when reasonable efforts for reunification may be

bypassed at the disposition stage of the proceedings:

(c) Reasonable efforts to maintain the child within his home shall not be
required if the court determines that:

(i) The parent has subjected the child to aggravated circumstances,
including, but not limited to, abandonment, torture, chronic abuse and
sexual abuse; or

(ii) The parent has been convicted of murder of another child of that
parent, voluntary manslaughter of another child of that parent, aided or
abetted, attempted, conspired, or solicited to commit that murder or
voluntary manslaughter, or a felony assault that results in the serious
bodily injury to the surviving child or another child of that parent; or

(iii) The parental rights of the parent to a sibling have been terminated
involuntarily; and

(iv) That the effect of the continuation of the child’s residence within
his own home would be contrary to the welfare of the child and that
placement of the child in foster care is in the best interests of the child.

(Emphasis added). This statute creates a two-prong test that must be met before reunification

placement efforts with a parent can be bypassed at the disposition stage. First, the youth

court must find that one of the conditions in section 43-21-603(7)(c)(i)-(iii) exists (i.e., the

parent subjected the child to aggravating circumstances, or murdered another child of the

parent, or the parent’s rights to another child have already been terminated). After

19
determining that one of those criteria has been proved, the youth court must then decide

whether the child’s residing within his parent’s home would be contrary to the child’s

welfare and whether foster care is in the child’s best interests. The State must establish these

two prongs by a preponderance of the evidence. In re D.O. and T.O., 798 So. 2d 417, 421

(¶13) (Miss. 2001).

¶47. In citing the statutory requirements, the majority emphasizes subsection (iv) (the best

interest of the child criteria). Although the majority states that proof of one of the

subsections in the first prong of the test is still necessary (i.e., proving subsection i, ii, or iii),

the majority goes on to hold that only partial proof of subsection (i) is sufficient, namely

proof of aggravating circumstances without proof that the child was subjected to those

aggravating circumstances. The statute clearly requires that the proof fully, not partially,

establish one of those other criteria and the best interest criteria before reunification efforts

may be bypassed.

¶48. The criteria and level of proof needed for bypassing reunification efforts at a

disposition hearing should not be confused with the criteria and proof needed to terminate

parental rights (TPR) at a TPR hearing under section 93-15-117. Both statutes include

language about bypassing reunification. At the disposition stage, section 43-21-603(7)(c)

sets out the two-prong analysis discussed above. In TPR proceedings, the State can raise a

number of other factors as reasons to bypass reunification and terminate a parent’s rights,

such as diagnosed mental illness, intentional and continued drug addiction, a parent’s

20
unwillingness to provide food, shelter, and medical care for the child, et cetera.14 In addition,

at the TPR hearing, the State must prove these circumstances by clear and convincing

14
The other grounds listed in Mississippi Code Annotated section 93-15-121 (Rev.
2021) include:

(a) The parent has been medically diagnosed by a qualified mental health
professional with a severe mental illness or deficiency that is unlikely to
change in a reasonable period of time . . . ;
(b) The parent has been medically diagnosed by a qualified health professional
with an extreme physical incapacitation that is unlikely to change in a
reasonable period of time . . . ;
(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 . . . ;
(g) The parent has committed an abusive act for which reasonable efforts to
maintain the children in the home would not be required under Section
43-21-603 . . . ; or
(h)(i) The parent has been convicted of any of the following offenses against
any child:
1. Rape of a child under Section 97-3-65;
2. Sexual battery of a child under Section 97-3-95(c);
3. Touching a child for lustful purposes under Section 97-5-23;
4. Exploitation of a child under Sections 97-5-31 through 97-5-37;
5. Felonious abuse or battery of a child under Section 97-5-39(2);
6. Carnal knowledge of a step or adopted child or a child of a
cohabitating partner under Section 97-5-41; or
7. Human trafficking of a child under Section 97-3-54.1; or
(ii) The parent has been convicted of:
1. Murder or voluntary manslaughter of another child of the parent;
2. Aiding, abetting, attempting, conspiring or soliciting to commit
murder or voluntary manslaughter of the child or another child of the
parent; or
3. A felony assault that results in the serious bodily injury to the child
or another child of the parent.

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evidence as noted in the statute and case law. See In re Adoption of Z.M.J. v. C.J., 365 So.

3d 273, 284 (¶7) (Miss. Ct. App. 2020) (“[I]f established by clear and convincing evidence,

any of the eight alternative bases [in section 93-15-121] 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.”). Thus, there is a clear difference

between the youth court’s analysis of the parent’s circumstances and behavior to determine

whether to bypass reunification efforts at a disposition stage of the Youth Court’s

proceedings and the court’s consideration of the family’s circumstances and reunification in

a termination of parental rights proceeding. Because Malone is appealing a youth court’s

order bypassing reunification at the disposition stage, we should examine the facts in light

of section 43-21-603(7)(c).

¶49. Section 43-21-603(7)(c)(i) provides that reunification efforts with a parent may be

bypassed at the disposition stage if “the parent has subjected the child to aggravated

circumstances including, but not limited to, abandonment, torture, chronic abuse and sexual

abuse.” (Emphasis added); see In re K.M. v. Jackson Cnty. Youth Ct., 365 So. 3d 268, 271

(¶11) (Miss. Ct. App. 2020) (One statutory basis for bypassing reunification is establishing

that the parent subjected the child to aggravating circumstances.). The statute itself requires

proof of a parent’s treatment of the child and whether that treatment could be considered an

equivalent of abandonment, torture, chronic abuse, or sexual abuse. Thus, appellate courts

reviewing youth court decisions to bypass reunification at the disposition stage have

examined whether there was sufficient proof that the parent actually harmed the child, or

22
whether the parent’s conduct towards a child’s siblings created the potential of harm to the

child in question if placed in that environment.15 In this case, there was no proof that Malone

had in the past subjected the child to any aggravating circumstances.

¶50. Nor was there no proof of the criteria for bypassing reunification found in section 43-

21-603(7)(c)(i)-(iii). Malone had no other children, so his parental rights to any child of his

own had not been previously terminated, nor had he ever murdered a sibling of A.H. Thus,

it is clear that the State did not prove any of the three criteria contained in the first prong of

section 43-21-603(7)(c)(i)-(iii). Without proving one of the conditions in section 43-21-

603(7)(c)(i)-(iii), the youth court cannot bypass reunification efforts at the disposition stage

15
Examples of cases warranting bypassing reunification because of a parent’s “actual
harm” to a child reunification are In re D.O., 798 So. 2d at 418 (¶1), where three-year-old
T.O. was sexually abused by her father, and her younger brother was also determined to be
neglected because he resided in the home where the abuse of T.O. occurred, and Kevin v.
Miss. Dep’t of Child Prot. Servs., 341 So. 3d 1014, 1016 (¶2) (Miss. Ct. App. 2022)
(affirming a finding of aggravating circumstances warranting bypass of reunification where
a mother threatened to kill herself and her children and sent the father pictures of her
brushing a butcher knife against the thigh of her two-month-old baby. Id. at 1021 (¶16).
In the case at hand, there is no proof, nor could there be, that Malone harmed A.H. because
Malone was incarcerated before the child was born and never had custody or access to A.H.
to harm him.
The potential for harm to a child based on a parent’s conduct towards siblings of the
child can also constitute an aggravating circumstance warranting a bypass of reunification.
For example, in T.T. v. Harrison Cnty. Dept. of Hum. Servs., 90 So. 3d 1283, 1284 (¶2)
(Miss. Ct. App. 2012), we affirmed the Harrison County Department of Human Services
(DHS) taking custody of three-day-old T.T. because other siblings of the child had
previously been placed in DHS custody for unexplained bruises and multiple bone fractures.
Id. at 1284-85 (¶¶2-6); see also In re K.M. v. Jackson Cnty. Youth Ct., 365 So. 3d 268, 271
(¶13) (Miss. Ct. App. 2020) (mother’s neglect of K.M.’s siblings reflected in broken bones
and malnutrition warranted bypassing reunification with K.M.). In the case at hand, there
was no proof that Malone had any contact with Latisha’s other children who were taken
from her. So there was no evidence of Malone’s harming a sibling of A.H. to support a
finding that Malone could potentially harm A.H.

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by simply saying that to do so would be in the best interest of the child under subsection 43-

21-603(7)(c)(iv).

¶51. The majority eliminates the clear statutory requirement of proving all elements of one

of the subsections in the first prong of the two-prong test to bypass reunification before

determining the second, the best interest of the child. It also cites C.P. v. Lowndes County

Department of Protection Services, 349 So. 3d 1209 (Miss. Ct. App. 2022), out of context

as if it supports such a ruling. But a thorough reading of C.P. shows that it does not. In that

case, shortly after C.P.’s birth, the hospital called CPS with concerns about the mother’s

ability to meet the baby’s needs. Id. at 1211 (¶2). The mother had an IQ of 46 and difficulty

comprehending and expressing herself. Id. at 1211 n.2. Later, a psychologist determined the

mother functioned on the level of an eleven-year-old child. Id. at 1215 (¶10). The father,

who had borderline intelligence, id. at (¶12), often left the mother alone all day with nothing

to eat. Id. at 1216 (¶16). Another child of the mother, who was subjected to the same

circumstances, had already been placed in CPS custody. Id. at 1213 (¶4). Eventually, the

parental rights to that child were terminated. Id. at 1221 (¶34).

¶52. On appeal, prior to discussing the termination hearing, this Court first reviewed the

proceedings at the prior disposition hearing, which are relevant to the case at hand. There,

the State proved that the parents had limited intellectual and childcare ability, id. at 1214

(¶7), which the youth court had found to be aggravating circumstances. Id. at 1212-13 (¶4).

However, the State further showed that these aggravating circumstances had been directed

to a sibling of C.P. and had resulted in the parents’ parental rights to that sibling being

24
terminated. Id. at 1221 (¶34). Because the youth court had previously terminated the

parents’ rights to one of C.P.’s siblings, the criteria for bypassing reunification in section 43-

21-603(7)(c)(iii) was satisfied. Id. Only after we found the threshold criteria had been met

did this Court then affirm the youth court’s finding on the best interest of the child. Although

we commented the paramount concern is the best interest of the child, not reunification, we

never relieved the State of its obligation at the disposition stage of the proceedings to show

that the parent subjected the child to whatever aggravating circumstances it found.16 In fact,

the youth court in C.P. faithfully followed the criteria set forth in section 43-21-603(7) when

considering the case at the disposition stage.

¶53. The critical statutory requirement of showing that a parent subjected the child to the

aggravating circumstances that may exist before bypassing reunification with the family at

the disposition stage is consistent with the overall mandate to reunite families when possible.

Establishing that causal connection is necessary, in my opinion, to avoid well-meaning state

agencies or courts from finding something negative in a parent’s past and jumping to the

conclusion that a child’s best interest is not served by the child’s having a parent with that

kind of history. That logic would destroy a family at the early stages of child neglect

proceeding, rather than help work through their problems and reunite them. Therefore,

16
Aggravating circumstances became a primary issue at the more expansive hearing
on the termination of parental rights. Id. at 1222 (¶37). But even then, the youth court
determined, and we agreed, that parental reunification was not required because the child
was subjected to the “aggravating circumstance” of the parents’ inability to care for the
child, just as the child’s sibling had faced. Id. We noted testimony that because of her
severe intellectual disability, the mother was “unable to meet her own basic needs, let alone
the basic needs of a minor child.” Id.

25
before those reunification efforts are bypassed, the statute requires a showing that the parent

has subjected the child to aggravating circumstances and then move to determine the best

interests of the child.

¶54. The majority ignores the statutory requirement that the child be subjected to the

aggravated circumstances shown, and the youth court in this case did not either and strained

to connect the two. Although the youth court correctly found that Malone’s criminal record

or incarceration were not per se sufficient reasons to bypass reunification efforts, to satisfy

the “subjecting the child to aggravated circumstances” requirement of section 43-21-

603(7)(c)(i), the youth court reasoned:

While being incarcerated or having a criminal history is not per se reason to
bypass reasonable efforts, the violent history of this father is so extensive as
to warrant a finding of aggravated circumstances in this matter as placement
in the father’s home, if, and when he is released from incarceration, would be
contrary to the welfare and best interests of the minor child. Therefore,
reasonable efforts for reunification between the minor child and his father is
not required under Miss. Code Ann. 43-21-603(7)(c).

In essence, the youth court imputed the nature of Malone’s crimes (i.e., violent crimes) to

conclude that Malone’s character was irretrievably violent and then speculate that Malone

would in the future, upon his release, subject the child to violent conduct. There is no

evidence to support this finding, which I would hold is manifestly wrong.

¶55. First, with nothing but Malone’s alleged criminal record before it and no testimony,

expert or otherwise, the youth court made a finding that Malone’s character was violent, and

that because of his character, Malone will be a threat to A.H. in the future. Even our Rules

of Evidence prohibit “the admission of evidence of a person’s character or character trait to

26
prove that on a particular occasion the person acted in accordance with the character or trait.”

MRE 404(a) cmt. “The reason for the rule is to prevent the State from raising the inference

that the accused has committed other crimes and is therefore likely to be guilty of the offense

charged.” Mitchell v. State, 110 So. 3d 732, 734 (¶10) (Miss. 2013). If evidence of prior bad

acts is not allowed to prove that an individual actually acted in a certain way on a certain

occasion, it certainly should not be used to “prove” how that person will act in the future.17

Thus, in my opinion, the youth court finding that in the future Malone would subject A.H.

to behavior similar to that reflected in his past criminal record to satisfy the first prong of the

section 43-21-603(7)(c) test was not supported by the record and manifestly wrong.

¶56. Further, the Youth Court’s finding that the child would be subjected to Malone’s

violence in the future is purely speculative in my opinion. We prohibit testimony, even from

experts, that is mere speculation. Corrothers v. State, 148 So. 3d 278, 294 (¶25) (Miss.

2014) (“Expert testimony will always be deemed unreliable if it is the product of subjective

belief or unsupported speculation.”). We have held that a criminal conviction cannot rest on

“substantial guesswork, speculation and conjecture.” Smoots v. State, 310 So. 3d 1184, 1190

(¶21) (Miss. Ct. App. 2020) (Without evidence that Smoots possessed illegal drugs, as

opposed to two other individuals present, the jury could only guess who was guilty.). While

the trier of fact may be allowed to draw inferences from the evidence presented, those

17
The comment to Rule 404 states, “The admissibility standards of Rule 404(b)
remain fully applicable to both civil and criminal cases,” and they apply in cases in youth
court as well. In re J.T., 188 So. 3d 1192, 1200 (¶43) (Miss. 2016) (holding that because
some believe that the Rules of Evidence are relaxed in youth court, “we find it necessary to
clarify that the Rules of Evidence do apply in youth-court adjudications with full force and
effect”).

27
inferences must only be the ones that reasonably could be drawn from the evidence presented

and create a “legitimate inference that places it beyond conjecture.” Herrington v. Leaf River

Forest Prods. Inc., 733 So. 2d 774, 777 (¶8) (Miss. 1999). In this case, it is my opinion that

the youth court’s finding that A.H. would be subjected to violence if placed with Malone

upon Malone’s release in the future is not a legitimate inference. It fails to allow for the

possibility that Malone, who is now in his fifties, might be rehabilitated if he were given the

opportunity to follow the service plan proposed by CPS. CPS had recommended that while

in prison, Malone would receive drug treatment, family counseling, and parenting classes.

He would be required to attend anger management classes and a domestic violence program.

Further, he would be motivated by having visitation with his son, whom even the youth court

acknowledged was special to Malone. Accordingly, I would hold that the youth court was

manifestly wrong in finding that Malone’s violent criminal history subjected A.H. to

aggravating circumstances sometime in the future met the criteria established in section 43-

21-603(7)(c) for bypassing reunification efforts at the disposition stage of the proceedings.

¶57. In summary, I disagree with the majority that finds the youth court complied with

section 43-21-603(7)(c)(i). That subsection clearly requires not only proof of aggravating

circumstances but also proof that the child was subjected to them. Because this record does

not include such proof, I would reverse and remand for further proceedings.

WESTBROOKS AND McCARTY, JJ., JOIN THIS OPINION. WILSON, P.J.,
JOINS THIS OPINION IN PART.

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