M.A.S. v. Lamar County Department of Child Protection Services

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CA-00070-COA

M.A.S. APPELLANT

v.

LAMAR COUNTY DEPARTMENT OF CHILD APPELLEE
PROTECTION SERVICES

DATE OF JUDGMENT: 01/28/2020
TRIAL JUDGE: HON. BRAD ASHLEY TOUCHSTONE
COURT FROM WHICH APPEALED: LAMAR COUNTY YOUTH COURT
ATTORNEYS FOR APPELLANT: KELLY GUNTER WILLIAMS
CHAD KENNETH KING
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: STEVEN PATRICK WANSLEY
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED - 09/21/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. On January 28, 2020, the Lamar County Youth Court entered a second amended

judgment1 terminating M.A.S.’s parental rights related to her biological children, A.S., B.S.,

and C.S.2 The judgment to terminate parental rights was entered approximately nineteen

months following the entry of an adjudication order dated July 9, 2018, wherein the Lamar

1
The original judgment terminating parental rights entered on December 17, 2019,
and the amended judgment terminating parental rights entered on January 14, 2020, were
amended pursuant to Mississippi Rule of Civil Procedure 60(a) for clerical mistakes.
2
Initials have been used for the parties in this case to protect the identities of the
minor children.
County Youth Court adjudicated A.S., B.S., and C.S. educationally neglected. Aggrieved

by the court’s judgment terminating her parental rights, M.A.S. appealed. Finding no error,

we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. A.A.S. and M.A.S. were husband and wife and had two children together, A.S. and

B.S. A.S. was born in April 2011, and B.S. was born in March 2010. M.A.S. had another

child, C.S., who was born in January 2006. While there is no father listed on C.S.’s birth

certificate, R.B. is alleged to be her biological father. R.B. did not participate at any of the

hearings in the adjudication proceedings or the termination of parental rights hearing.

¶3. On May 22, 2018, The Mississippi Department of Child Protection Services (CPS)

received a report stating that B.S. had missed twenty days of school since January 2018 (ten

excused and ten un-excused), and A.S. had missed twenty-two days of school since January

2018 (eleven excused and eleven un-excused). The report further alleged that the children

often came to school dirty and never had snacks. Finally, the report stated that it was

unknown whether M.A.S.’s home currently had electricity or running water. On the same

day that the initial report was made, a school truancy officer went to M.A.S.’s home and

explained to her that the children could not miss any more school.

¶4. The next day, May 23, 2018, CPS investigator Kaitlyn Swilley called the children’s

school to follow up on the report and was told that the children were again not at school.

While at the school, Swilley was able to obtain a copy of the children’s attendance records,

2
which showed that A.S. had missed thirty-four days since the beginning of the school year,

and B.S. had missed thirty-five days of school since the beginning of the school year.

Swilley immediately left the school and went to M.A.S.’s home to conduct a wellness check.

When Swilley arrived at M.A.S.’s home, she made initial contact with A.S., and after he

stated that M.A.S. was at home, Swilley asked if she could speak to her. The children’s

grandmother poked her head out of the back window of the home and told Swilley that

M.A.S. was not home and that she could not let Swilley speak to the children without talking

to her first. Swilley gave the grandmother her cell phone number and told her to have M.A.S.

call her concerning the home visit. During her visit to M.A.S.’s home, Swilley observed that

the air-conditioning unit was functioning, which verified that the home had electricity.

M.A.S. immediately called Swilley and told her that she would not be able to speak with her

until Monday, May 28, 2018, and stated that the children had strep throat and may not be at

school for the rest of the week. M.A.S. said the children had very low immune systems, and

they missed school at least once a month. Swilley explained to M.A.S. that the matter could

not wait until Monday and that she needed to speak to the children within twenty-four hours.

M.A.S. stated that she “had read all of the CPS policy,” and she knew that Swilley had

seventy-two hours to speak to the children.

¶5. On May 24, 2018, Swilley went back to M.A.S.’s home to make contact with the

children. When she arrived at the home, the children and their grandmother were all present,

but M.A.S. was not there. The grandmother advised Swilley once again that she could not

3
speak to the children without M.A.S.’s permission. After Swilley left the home, M.A.S.

called Swilley on her cell phone and told her again that she would not allow her to talk to the

children until Monday, May 28, 2018, and that Swilley could not speak to the children

without her being present. After M.A.S.’s call, Swilley’s supervisor, Tiya Jones, contacted

the youth court judge regarding M.A.S.’s lack of cooperation, and the court entered an

emergency custody order granting CPS immediate custody of A.S. and B.S.3 Swilley

returned to M.A.S.’s home with the emergency court order allowing them to take custody of

A.S. and B.S. M.A.S. answered the door, ripped up the court order, and refused to relinquish

custody of her children. While Swilley waited on law enforcement to assist with the

children’s removal, M.A.S. fled the home with A.S. and B.S. Law enforcement ultimately

convinced M.A.S. to return home with the children. When Swilley was finally able to enter

M.A.S.’s home, she was able to observe the conditions of the home. Swilley’s report

described the home as follows: “in poor conditions with dog feces on the floor and in the

bathroom, clothes and trash laying all through the trailer, and there was a strong odor. The

children were observed to have on dirty clothes, they had a strong body odor, and they

appeared to not have been bathe[d].” While examining M.A.S.’s home, Swilley realized that

an additional child, C.S., was residing in the home. Given the condition of the home, CPS

contacted the youth court judge again and requested emergency custody of C.S. as well. All

three children were taken into CPS’s custody. Once the children were removed from the

3
The initial report made to CPS only mentioned A.S. and B.S.; however, C.S. was
found residing in M.A.S.’s home when the investigators entered the home.

4
home, they were taken to a doctor for an infestation of head lice and were prescribed lice

treatments.

¶6. Over the course of their investigation, CPS also discovered that the special education

department from the children’s school had been trying to contact M.A.S. regarding A.S.’s

individualized education program (IEP). Because M.A.S. was unresponsive, the school had

been unable to complete A.S.’s evaluation to determine if he qualified for certain services

to assist him in school. Swilley’s report also stated that “due to the family’s history of drug

use, [M.A.S.] was asked to submit to a drug screen that was provided for her . . . .” Each of

the factors set out in Swilley’s report (the conditions of the home, the children’s hygiene, the

number of days that the children had missed school, education needs not being met, and the

history of drug abuse) led to CPS’s recommendation that A.S., B.S., and C.S. be adjudicated

neglected children.

¶7. A “shelter hearing”4 was held on May 29, 2018, in the Youth Court of Lamar County.

M.A.S. was present at the shelter hearing without counsel. Pursuant to the shelter order

entered on the same day, the youth court ordered that the Lamar County Department of Child

Protective Services continue to maintain custody of A.S., B.S., and C.S. The order further

adopted a permanency plan of reunification with the parents and a concurrent plan of durable

legal custody or legal guardianship. At the hearing, the court appointed Tangi Carter to

represent M.A.S. as a parent representative throughout the adjudication process.

4
See Miss. Code Ann. § 43-21-309 (Supp. 2017); U.R.Y.C.P. 16.

5
¶8. On June 7, 2018, the Lamar County prosecuting attorney filed a petition alleging that

A.S., B.S., and C.S. were neglected children pursuant to Mississippi Code Annotated section

43-21-105(1) (Supp. 2017) based on the events previously discussed. Following the filing

of the petition, the youth court conducted an adjudication and disposition hearing on June 26,

2018.5

¶9. At the onset of the adjudication hearing, the judge told M.A.S. and A.A.S:

[A]s you know, this is an adjudication hearing to determine if these children
will be adjudicated neglected. If they are, we’ll have a separate disposition
hearing to determine what disposition will be made in their case—in other
words, where they will be placed.

M.A.S. and A.A.S. were represented at the hearing by Tangi Carter. CPS supervisor Tiya

Jones testified at the adjudication hearing as to the contents of Swilley’s report and the events

leading up to the emergency custody order. Outside of the facts previously discussed, Jones

testified that the children had multiple absences from school just prior to the most recent

report and, more specifically, on May 17, 18, 20, and 22. Jones further testified that A.S. had

previously repeated kindergarten because of the number of days he missed the previous year

and that currently he was barely passing. In addition to the infestation of head lice, A.S.

tested positive for mononucleosis immediately after removal from M.A.S.’s home. B.S.

tested negative for mononucleosis, but her tonsils were extremely swollen, indicating that she

had previously had it or was about to have it. Jones testified that “due to a history of drug

5
The front page of the court transcript dated June 26, 2018, indicates that the
transcript covered both the adjudication hearing and the disposition hearing. However, it
is clear from the contents of the transcript that there was only one hearing.

6
use with the family,” the agency requested M.A.S. and A.A.S. each to submit to a drug

screen. As of the date of the adjudication hearing, neither M.A.S. nor A.A.S. had complied

with the agency’s request. M.A.S.’s attorney provided negative drug screens on the day of

the hearing, but they were not processed by the lab that the youth court requested be used.

Notably, Swilley’s report also stated in part:

The agency has a long history with [M.A.S.] and her family. We have been
receiving reports alleging abuse and neglect since April 2, 2002.6 There have
been [twenty-seven] reports received to the agency concerning the mother’s
drug use, driving while under the influence, poor living conditions of the
home, multiple reports of the children receiving head lice, and truancy issues.
Out of the [twenty-seven] reports, [four] reports have been evidenced for
physical neglect. Two reports were substantiated based off of the two children
testing positive for marijuana at birth.

At the conclusion of the hearing, the court declared all three children to be neglected and

adopted a plan of reunification with the natural parents. The judge directed M.A.S. and

A.A.S. to “go take a drug screen that they send you to take. Then we’ll review the case on

July 24. . . . We’ll see you back then.” The adjudication order was entered on July 9, 2018.

A disposition order was also entered on July 9, 2018, despite the fact that there was no

separate hearing. Pursuant to the disposition order, A.S., B.S., and C.S. were placed in the

custody of Lamar County CPS with a permanency plan of reunification with the biological

parents and a concurrent plan of durable custody.

6
The CPS report indicates that they had been receiving abuse and neglect reports
concerning M.A.S. and A.A.S. since April 2, 2002. However, none of the minor children
were born as of 2002. Thus, there was likely a typographical error, and perhaps it should
have read “2012.”

7
¶10. On July 24, 2018, the youth court conducted a review hearing.7 M.A.S. was

represented by Anna Rush at the hearing. Family protection specialist Blair Noland testified

on behalf of CPS. Noland testified regarding the children’s progress in school and indicated

that they had been regularly attending dental and doctor’s appointments. She testified that

the agency held a family team meeting with M.A.S. on July 9, 2018, and they discussed and

developed a service agreement. However, as of July 19, 2018, the service agreement had not

been signed by M.A.S. or A.A.S., nor had either of them submitted to a drug screen with

Court Programs Inc. (Court Programs). Noland testified that she did a walk-through of

M.A.S.’s home on July 19, 2018, and it was clean and clutter free at that time. M.A.S.

exercised visitation with C.S. on July 9, 2018; however, she did not show up for the

following visitation scheduled on July 19, 2018. Finally, Noland testified that CPS

recommended all three children remain in CPS custody for further supervision. At the

conclusion of the hearing, the court ruled from the bench that:

The children will remain in the legal custody of the Agency. We’re going to
do a trial home placement provided I get two negative drug screens. . . . The
children will remain in the custody of the foster parents. And we have court
on August 7. I’m going to look at it on August 7th.

A permanency order was entered on July 26, 2018.

¶11. On August 7, 2018, the youth court conducted another review hearing. M.A.S. was

present with counsel. At that hearing, Lamar County CPS Supervisor Kimberly Thomas

7
The transcript’s cover sheets refer to the July 24, 2018 and subsequent review
hearings as permanency hearings.

8
testified on behalf of the agency. Thomas testified that M.A.S. and A.A.S. signed their

service agreement that morning prior to the hearing, nearly a month after it was initially

prepared on July 9, 2018. 8 Their service agreement consisted of mental health assessments,

parenting classes, random drug screens, stable housing, regular contact with the agency,

maintaining visits with the children, and participation in the children’s education. Further,

she testified that the agency had arranged family visits for the parents on July 20, July 27, and

August 3; however, neither parent attended any of the visits. Finally, Thomas testified that

the agency continued to struggle with trying to get M.A.S. and A.A.S. to comply with drug

screen requests. She testified that the agency requested drug screens on July 9, July 19, and

July 24. Finally, on August 1, 2018, M.A.S. contacted the agency and stated that they were

ready to take a drug screen. M.A.S. was informed that the previously ordered drug screen

had expired, but another order was being processed and would be available on August 2,

2018. On August 3, 2018, M.A.S. and A.A.S. refused to complete the drug screen at Court

Programs because it was a hair-follicle screen. M.A.S. testified that she and A.A.S. did

complete a urine test at Court Programs, and she stated that those screens were negative. At

the conclusion of the hearing, the youth court stated in part:

I’ll probably regret this, but I’m going to try it. I’m going to give you a ninety-
day home placement starting today. [M.A.S.], you’ve got to do the drug
screens. I don’t want an excuse that I went up there and they wanted to do a
hair follicle, and I didn’t want to do that. You do whatever they tell you to do.

8
The family service plan indicates that M.A.S. signed the plan on July 24, 2018.
While the handwritten date appears to read “2017,” family protection worker Torjai Ashford
testified that the plan was actually signed on July 24, 2018.

9
And these kids better not miss any school.

A permanency order was entered on August 16, 2018, and a review hearing was set for

November 13, 2018.

¶12. On November 13, 2018, the youth court conducted another review hearing at which

neither M.A.S. nor A.A.S. were present; however, their counsel did attend. Ashford updated

the youth court on both the children’s school attendance and the parents’ drug screens.

Ashford testified that A.S. and B.S. had each missed five days of school, and C.S. had missed

twelve days of school during the ninety-day trial custody period. She further testified that

neither M.A.S. or A.A.S. had submitted to drug screening or produced any kind of

documentation in compliance with their service agreement. Ashford requested that legal

custody of the minor children remain with Lamar County CPS and that the matter be

reviewed in thirty days to monitor compliance with the drug screens and school attendance.

At the conclusion of the hearing, the court ruled in part to “continue the trial home

placement, and review the case on [December 11]. . . . If you will, tell [M.A.S.] that if I don’t

have a clean drug screen on the 11th, I’m removing these children from the home again.”

¶13. On December 11, 2018, the youth court conducted a review hearing to evaluate

M.A.S.’s compliance with the service agreement and the directives given by the youth court

at the hearing on November 13, 2018. M.A.S. was present at the hearing with counsel.

Ashford testified for the agency and stated that M.A.S. still had not taken a drug test that was

requested by the agency. M.A.S. reported to Ashford that she went to take a drug test at

10
Culpepper Drug Testing; however, when Ashford called Culpepper, they had no record of

her taking a test. The children had only missed one day of school, and Ashford verified that

the children were actually sick on that day. Ashford recommended that M.A.S. and A.A.S.

be afforded the opportunity to go to Court Programs that day and take the drug screen.

Ashford testified that if the drug screens were negative, the agency would recommend that

the children be removed from Lamar County CPS’s custody; however, if the drug screens

were positive, the children should remain in the legal custody of Lamar County CPS,

removed from the parents’ home, and subject to a review hearing in ninety days. At the

conclusion of the hearing, the youth court stated:

I don’t know what you don’t understand. You’ve got to take a drug test at
Court Programs, not a place you choose, not a place your husband chooses.
Court Programs today. If you don’t, I’m going to take your children out of
your home again. . . . I’ll take it under advisement until next Tuesday.

¶14. Pursuant to the youth court’s directive, M.A.S. and A.A.S. took drug tests at Court

Programs on December 11, 2018. M.A.S. tested positive for methamphetamines and

amphetamines. A.A.S. testified positive for methamphetamines, amphetamines, and

marijuana. The children were removed from their parents’ custody on that same day. On

December 18, 2018, the youth court reviewed the drug test result, and family protection

worker Ashford testified for the agency. Ashford testified that when the children were

removed from M.A.S.’s home, their heads were once again covered in lice, but they had all

been treated and were doing well. Ashford also testified that the agency was working on

placing the children with a family member after the first of the year. On January 4, 2019, the

11
youth court entered an order wherein the children would remain in foster care placement until

a review hearing on March 26, 2019.

¶15. On March 26, 2019, the youth court conducted a hearing to review the permanency

plans for all three of the minor children and to determine if any changes needed to be made

as a result of the positive drug screens. M.A.S. was present at the hearing with counsel.

Ashford testified on behalf of the agency and stated that both M.A.S. and A.A.S. had been

unresponsive to the agency in furtherance of the reunification plan. Ashford testified:

In regards to [M.A.S.] and [A.A.S.], I have not made any contact with them.
. . . [M.A.S. has] given me a fake drug test one time. . . . I don’t know what
she’s doing now. She has not come in to talk to me. I’ve tried to call her on
the phone. A couple of times the phone was off. I went by the house one time,
and no one was there. The lights were off. It was quiet. The dog was barking
in the house.

According to Ashford there was a family team meeting scheduled for March 22, 2019, but

neither M.A.S. nor A.A.S. showed up. Ashford testified that despite the fact that the agency

was working with a family member for the children’s permanent placement, custody with

that family member was no longer a viable option, and the agency was exploring additional

relatives for custody. On the date of the hearing, the agency’s recommendation was that

legal and physical custody of the minor children remain with Lamar County CPS and that the

permanency plan of reunification be changed to adoption with a concurrent plan of durable

legal custody. Ashford testified that she had less contact with A.A.S. than she had with

M.A.S. and no contact whatsoever with C.S.’s alleged father R.B. As a result, Ashford

requested that the agency not be required to make any additional reasonable efforts toward

12
reunification with any of the biological parents. At the conclusion of the hearing, the court

ruled in part:

[M.A.S.] has had ample opportunity to work with the Agency towards
reunification and has failed to do so. Likewise, the same with the fathers.
There has been no effort whatsoever to work towards reunification with these
children. . . . The Court does think its in the best interest that we move this
case to where the children can have some stability and permanency. The Court
is going to adopt the Agency’s recommendation that the plan be changed to
adoption with a concurrent plan of durable legal custody. The court further
orders that no reasonable efforts have to be made to work towards
reunification with the parents. We will review this case in ninety days.

A permanency order was entered on April 5, 2019, and the case was set for another review

hearing on June 18, 2019.

¶16. On May 1, 2019, M.A.S., by and through her attorney, filed a motion to reconsider the

permanency plan, alleging that it was in the children’s best interest to reinstate a permanency

plan of reunification and a concurrent plan of durable legal custody with M.A.S.’s sister.

Notably, there were no claims of procedural errors in the adjudication process asserted in

M.A.S.’s motion for reconsideration.

¶17. On June 18, 2019, the youth court conducted a review hearing wherein the court also

considered M.A.S.’s motion to reconsider the permanency plan. M.A.S. and A.A.S. were

present at the hearing without counsel. Torjai Ashford testified again on behalf of CPS. She

testified the children were doing better in school, and all had progressed to the next grade

level. According to Ashford, M.A.S. and A.A.S. continued to make some visits with the

children despite the fact that CPS had been released of any obligation to continue to work

13
with them. Since the last review hearing, the agency received an additional report concerning

M.A.S. and A.A.S. Ashford’s case-review report summarized the new report as follows:

[M.A.S. and A.A.S.] were using their niece[’s] urine to pass their drug screens
for CPS. In addition, the report alleged that the home has black mol[d] with
no working power. The family is running a cord from the sister’s home. The
report stated they were making the report out of concern and they did not want
the children to go back home in that situation.

Ashford testified that the agency was continuing to work toward the plan of adoption and

recommended that legal and physical custody remain with Lamar County CPS to be reviewed

in ninety days. M.A.S. testified that the contents of the report to CPS was a lie. She argued

that there was nothing wrong with her home and provided pictures for the court’s review.

According to M.A.S., CPS failed to make reasonable efforts toward the permanency plan of

reunification. M.A.S. testified that she had not used drugs in “six or seven months.” At the

conclusion of the hearing, the youth court stated in part:

[I]n order for me to even entertain changing the plan, I have to be satisfied that
you are sober. Both of you. . . . I want y’all to go submit to a drug test today,
straight from here. . . . I’ll consider it when I review the case in ninety
days. . . . [I]f either one of them come back positive, then I’m not going to
order [CPS] to do anything else with them. If you get negative drug screens
today, I would like [CPS] to continue if they are willing to do so and monitor
that for me.

A permanency order was entered on June 24, 2019, leaving physical and legal custody with

Lamar County CPS and the case was set for another review hearing on September 24, 2019.

¶18. On September 24, 2019, the youth court conducted a review hearing to follow up on

the drug screens requested by the court at the previous hearing. M.A.S. and A.A.S. were

14
present with counsel. Torjai Ashford testified on behalf of CPS. According to Ashford, the

children were thriving in school and up to date on all medical and dental appointments.

Since the last review hearing, a petition to terminate parental rights (TPR) and a motion to

appoint a guardian ad litem (GAL) was filed on August 12, 2019, and the date for the TPR

hearing was set for October 22, 2019. Ashford testified that neither M.A.S. nor A.A.S. had

submitted to the drug screen requested at the prior hearing. Ashford stated that she sent the

paperwork to Court Programs immediately following the hearing on June 18, 2019. Court

Programs advised Ashford that M.A.S. and A.A.S. came in around 3:15 p.m., stayed a few

minutes, and left. M.A.S. testified that she and A.A.S. went to Court Programs, stayed until

4:00, and left because the drug screen paperwork was not there. She maintained, though, that

she and A.A.S. took a drug test the day before the current hearing. Notably, M.A.S. failed

to provide any documentation of that drug screen. According to Ashford, the agency was

working with Canopy Solutions on an adoption placement for the children. At the conclusion

of the hearing, the youth court ruled that legal and physical custody of the minor children

should remain with Lamar County CPS. A permanency order was entered on September 30,

2019, and the case was set for another review hearing on March 24, 2020.

¶19. The TPR hearing was originally scheduled for October 22, 2019; however, the court

continued the hearing until December 10, 2019, after it was discovered that A.A.S. was not

served properly and M.A.S. requested additional time to hire an attorney.9 On December 10,

9
There are no transcripts from the original October 22, 2019 TPR hearing; however,
the court alludes to these facts in the transcript for the December 10, 2019 TPR hearing. At

15
2019, the Lamar County Youth Court held a hearing on the State’s petition to terminate the

parental rights of M.A.S., A.A.S., and R.B. An order appointing the GAL and the GAL’s

report were entered on the same day as the hearing.10 M.A.S. and A.A.S. were not

represented by counsel at the December 10, 2019 TPR hearing. At the onset of the TPR

hearing, M.A.S. requested that the case be continued again because she had been approved

for a legal-aid attorney, but one would not be able to assist her until the beginning of January.

The judge denied her request by stating, “I’ve already given you a continuance for a lawyer.

. . . I’m not continuing this case today for that reason.” The court also stated, “[I]f you want

to hire a lawyer and appeal this, you can.”

¶20. Torjai Ashford was the first witness for the State to testify on behalf of CPS. The

State made several motions to amend its pleadings to conform to the evidence at the onset

of its direct examination of Ashford.11 The motions were granted, and the pleadings were

amended accordingly. Ashford primarily testified to the specific facts leading up to the

the December 10, 2019 TPR hearing the youth court asked M.A.S. about her previous court-
appointed counsel and stated, “Okay. So you are going to – like I said, the Court has
appointed you counsel You apparently fired, I guess Mrs. Carter.” In response M.A.S.
stated, “Yes, sir. I just don’t want an attorney that can’t file an appeal for me. That just –
it don’t make no sense.” The youth court responded, “All right. Well, we’re going to
proceed today. Again this Court did give you opportunity to retain counsel. You apparently
have not done so.”
10
The GAL, Cynthia Re, was previously appointed as the GAL for the minor children
in January 2019. The court re-appointed her on December 10, 2019, for the TPR hearing.
11
The State’s petition to terminate parental rights had several clerical errors including
A.S.’s birthday, the date that the children were placed in the care and custody of CPS, and
the date that the children were adjudicated neglected children.

16
agency’s receiving the report on May 22, 2018, concerning A.S. and B.S. and the events that

followed ultimately led to the filing of the TPR petition. Ashford also testified that M.A.S.’s

family had twenty-seven prior reports of alleged drug use, truancy issues, “deplorable home”

conditions, and unpaid utility bills. Four of those reports were substantiated. Further, two

of M.A.S.’s children were born with marijuana in their system. She testified that prior to

taking custody of the children in 2018, CPS took custody of the minor children in 2015 under

similar circumstances.

¶21. Ashford testified that CPS developed a service agreement for both M.A.S. and A.A.S.

in conjunction with the 2018 report and explained to them the importance of completing the

agreement; however, neither of them followed through with its completion. According to

Ashford, M.A.S. and A.A.S. both had an ongoing “issue with drug abuse,” and therefore CPS

requested that they submit to random drug screens. Ashford testified that they refused drug

screens at least twice a month throughout the youth court’s review hearing process. Ashford

stated, “I would beg [M.A.S.] to go. Please, I’d say. Your kids are going to be removed if

you don’t. All [M.A.S.] would do was cry.” On December 11, 2018, M.A.S. and A.A.S.

finally submitted to drug screens through Court Programs only after they were ordered by the

youth court to do so immediately following one of the numerous review hearings. A.A.S.

tested positive for methamphetamines, amphetamines, and marijuana, and M.A.S. tested

positive for methamphetamines and amphetamines. Further, neither M.A.S. nor A.A.S. ever

submitted to a mental health assessment as required by the service agreement.

17
¶22. Ashford testified that neither M.A.S. nor A.A.S. had provided the minor children with

necessary food, clothing, or shelter with any consistency. She related only one instance

where M.A.S. and A.A.S. invited the children to go to the mall, gave them money, and took

them out to eat. According to Ashford, there had been some communication among M.A.S.,

A.A.S., and the children, but both parents had missed multiple scheduled visits with the

children. Ashford testified that the sporadic visitation had caused an erosion of the

relationship between the parents and the children. At the conclusion of her testimony,

Ashford recommended that “the parents’ rights [be] terminated so the children have some

permanency and can be adopted.” Other than the GAL, the State did not put on any

additional witnesses at the TPR hearing.

¶23. M.A.S. was the only witness who testified on her behalf at trial. She began by stating

that she did not have a strained relationship with her kids. She testified that “they don’t hate

me or resent us or anything.” M.A.S. admitted that she and A.A.S. had not had many visits

with the children during the time that the kids were in foster care. She also admitted that the

children had missed several days of school. M.A.S. denied that her home was unlivable. She

admitted that it “was not the cleanest in the world, but . . . I had water. I had lights. I had

food.”

¶24. M.A.S. argued at trial that CPS failed to make reasonable efforts to reunify her and

A.A.S. with the minor children. She alleged that Ashford had gone months without making

contact with either her or A.A.S. and did not make an effort to set up visitations with them

18
and the children. M.A.S. testified, “I’m not blaming everything on CPS. I understand what

we did wrong. But it’s not . . . enough to just rip my kids away from us.” (Emphasis

added). Finally, during her direct statement to the court, M.A.S. testified that she and A.A.S.

had turned in clean drug screens that they paid for themselves; however, she did not bring

any of those tests for the court’s review on the day of the TPR hearing.

¶25. On cross-examination, M.A.S. admitted that while she claimed that the children had

certain medical conditions that caused them to miss school, these conditions were not the sole

reason for their school absences. M.A.S. testified that there were “some that were my fault.

They missed the bus and I didn’t have a ride.” Also during cross-examination, M.A.S.

admitted that she had some issues with drug use.

¶26. Cynthia Re, the court-appointed GAL, was the last witness to testify at the TPR

hearing. Re testified that she became the GAL in the case in January 2019 after taking over

the file from the previous GAL Kristen McGee and was re-appointed by a separate order

dated December 10, 2019, for the purposes of the TPR hearing. Re testified that her file

included a case history dating back to a report made on May 22, 2018, and included notes

regarding the family’s history with CPS prior to the instant report. After giving a narrative

of the case history previously discussed herein, Re gave her recommendation that the court

should find that the State met its burden by clear and convincing evidence required by

Mississippi Code Annotated sections 93-15-115 (Supp. 2017) and 93-15-121 (Supp. 2017)

to terminate the parental rights of M.A.S. and A.A.S. Re testified that while the children

19
loved their parents, they also desired stability, which she felt was something they could not

receive from M.A.S. and A.A.S.

¶27. At the conclusion of the trial, the court held that it had jurisdiction of over the

proceeding pursuant to Mississippi Code Annotated section 93-15-105. Further, the court

held in part:

The [children], based on the testimony in evidence, by clear and convincing
evidence . . . were adjudicated neglected. . . . The Department did develop a
Service Plan with [M.A.S. and A.A.S.] to effect reunification with the
children. . . . However, the parents did fail to substantially comply with terms
of that Service Agreement. Reunification with these parents would not be in
the best interest of the children. The Court also finds that termination of
parental rights is appropriate. . . . The Court does find by clear and convincing
evidence that M.A.S. and A.A.S. do suffer from a habitual drug addiction and
that they have been unable to get control of that addiction. . . . Therefore, the
court find[s] grounds for termination under § 93-15-121(c) as to [M.A.S. and
A.A.S]. The Court also finds that this neglectful behavior has at least in part
contributed to a substantial erosion of the relationship between the parents and
the child.

Finally, the court advised M.A.S. and A.A.S. that they had thirty days to appeal the judgment

if they wished to do so. A judgment terminating M.A.S and A.A.S.’s parental rights was

entered on December 17, 2019. An amended judgment was entered on January 14, 2020, and

a second amended judgment was entered on January 28, 2020. The subsequent orders were

entered to rectify clerical errors to the prior judgment.

¶28. M.A.S. filed her notice of appeal in forma pauperis on January 16, 2020. The court

entered an order on January 28, 2020, directing M.A.S. to file a motion for leave to appeal

in forma pauperis by February 7, 2020, and set the motion to be heard on February 18, 2020.

20
On February 10, 2020, M.A.S. filed a motion for extension of time and a motion for

continuance and other relief in which she requested additional time to file her motion and

requested that the February 18th hearing be continued. By virtue of an order dated February

10, 2020, M.A.S. was granted additional time to file her motion; however, the court did not

move the hearing date from February 18, 2020. M.A.S. filed her motion for leave to appeal

in forma pauperis on February 14, 2020. On February 20, 2020, the court entered an order

denying motion to proceed in forma pauperis on appeal. On April 2, 2020, the Mississippi

Supreme Court entered an order wherein M.A.S.’s motion for leave to appeal in forma

pauperis was granted.

¶29. M.A.S. argues three issues on appeal as follows: (1) the youth court lacked

jurisdiction over the educational neglect proceedings, therefore barring the termination of

parental rights; (2) the youth court lacked jurisdiction over the termination-of-parental-rights

action; and (3) the court erred in finding clear and convincing evidence that M.A.S.’s

parental rights should be terminated. Finding no error, we affirm the ruling of the Lamar

County Youth Court.

STANDARD OF REVIEW

¶30. The appellate standard of review is the same for both youth court proceedings and

chancery court proceedings. In re J.P., 151 So. 3d 204, 208 (¶9) (Miss. 2014). “The county

court’s ‘findings of fact concerning the termination of parental rights are viewed under the

manifest error/substantial credible evidence standard of review.’” C.S.H. v. Lowndes Cnty.

21
Dept. of Human Servs., 246 So. 3d 908, 913 (¶21) (Miss. Ct. App. 2018) (quoting W.A.S. v.

A.L.G., 949 So. 2d 31, 34 (¶7) (Miss. 2007)). On appeal, this Court is tasked with

determining “whether credible proof supports the county court’s factual findings by clear and

convincing evidence.” Id. at 913-14 (¶21). However, questions of law are subject to de novo

review, “and if a chancellor misapprehends the controlling rules of law or acts pursuant to

a substantially erroneous view of the law, reversal is proper.” Chism v. Bright, 152 So. 3d

318, 322 (¶12) (Miss. 2014).

ANALYSIS

I. Did the youth court lack jurisdiction over the underlying
educational neglect action, therefore barring the termination of
M.A.S.’s parental rights?

¶31. M.A.S. argues on appeal that the Lamar County Youth Court lacked jurisdiction over

the underlying educational neglect action by virtue of several procedural errors, and therefore

the termination of her parental rights was barred. More specifically she claims (1) that her

due process rights were violated as a result of faulty service of process and non-compliance

with the Youth Court Act; (2) that the petition to adjudicate the minor children neglected was

insufficient to place M.A.S. on notice of the issues to be argued at the adjudication hearing;

(3) the youth court failed to conduct the disposition hearing separately and apart from the

adjudication hearing in accordance with the provisions of the Youth Court Act; and (4) the

youth court failed to consider reasonable alternatives to custody.

¶32. Following the shelter hearing on May 29, 2018, the youth court conducted ten

22
hearings ending with the TPR hearing on December 10, 2019. M.A.S. was represented by

counsel at eight of the ten hearings, on June 26, 2018; July 24, 2018; August 7, 2018;

November 13, 2018; December 11, 2018; December 18, 2018; March 26, 2019; and

September 24, 2019. At no time during any of those eight hearings did M.A.S.’s counsel

object to any jurisdictional errors alleged to have occurred during the adjudication process.

Further, M.A.S.’s counsel failed to perfect an appeal arising from the adjudication order

entered on June 26, 2018. Therefore, M.A.S. has waived her claims regarding the underlying

educational neglect action. Notwithstanding her waiver, M.A.S.’s arguments are discussed

further below.

A. Service of Process and Compliance with the Youth
Court Act

¶33. M.A.S. argues that the youth court failed to issue her a summons to perfect the

requisite service of process. She further argues that the youth court failed to comply with the

requirements of Mississippi Code Annotated section 43-21-557(1)-(2) (Rev. 2015). More

specifically she claims that the youth court failed to “ascertain whether the notice

requirements had been complied with, or if the parties intelligently waived their due process

rights” and “failed to engage the parties and explain their rights.”

¶34. Mississippi Code Annotated section 43-21-501(1) (Rev. 2015) states:

(1) when a petition has been filed and the date of the hearing has been set by
the youth court, the judge or his designee shall order the clerk of the youth
court to issue a summons to . . . . (c) the parent or guardian of the child if such
parent or guardian does not have custody of the child.

23
Further, Mississippi Code Annotated section 43-21-507(1) (Rev. 2015) states that

“[s]ummons shall be served not less than three (3) days before the date set for the

adjudicatory hearing of proceedings concerning the child.” Finally, Mississippi Code

Annotated section 43-21-557(1) states in part:

At the beginning of each adjudicatory hearing, the youth court shall: . . . . (c)
ascertain whether the notice requirements have been complied with and, if not,
whether the affected parties intelligently waived compliance in accordance
with Section 43-21-507; . . . and (e) explain to the parties: (i) the right to
counsel; (ii) the right to remain silent; (iii) the right to subpoena witnesses; (iv)
the right to cross-examine witnesses testifying against him; and (v) the right
to appeal.

¶35. As previously stated, it is important to note that neither the adjudication order nor the

disposition order, which were both entered on July 9, 2018, were ever appealed. Further, the

only judgment subject to the current appeal is the judgment terminating M.A.S.’s parental

rights. However, the adjudication petition was filed on June 7, 2018,12 and a summons was

issued for M.A.S. on that same day for the hearing scheduled on June 26, 2018. The youth

court docket indicates that M.A.S. was personally served for the adjudication hearing on June

16, 2018, ten days prior to the adjudication hearing, in compliance with Mississippi Code

Annotated section 43-21-507. Further, M.A.S. was present at the adjudication hearing on

June 26, 2018, with counsel ready to proceed. There were no objections made by counsel at

the time of the adjudication hearing concerning any service-of-process issues, and the hearing

was conducted as scheduled. Therefore, this issue is without merit.

12
The youth court docket indicates that the petition was filed on May 30, 2018;
however, the petition was stamp filed on June 7, 2018.

24
¶36. While M.A.S. now asserts error by the youth court’s failure to comply with

Mississippi Code Annotated section 43-21-557, this Court has previously held that the

“failure to comply with Section 43-21-557 does not necessarily result in automatic reversal.”

In re L.C.A., 938 So. 2d 300, 306 (¶19) (Miss. Ct. App. 2006). In In re L.C.A., a child was

represented by counsel at an adjudication hearing, and counsel did not object to or call into

question the court’s failure to explain section 43-21-557 to his client. Id. This Court held

that the youth court’s failure to explain section 43-21-557 was harmless error at best. Id.

Further, in Cortesi v. Washington Cnty. Dep’t of Human Servs. (In re T.L.C.), 566 So. 2d

691, 699 (Miss. 1990), overruled on other grounds by D.T. v. Hinds Cnty. Youth Ct. (In re.

J.T.), 188 So. 3d 1192, 1201-02 (¶¶49-51) (Miss. 2016), a biological father was represented

by counsel during both the adjudication and disposition hearings, wherein counsel cross-

examined witnesses and gave closing arguments. The supreme court held that “while

conscientious practice counsels that the youth court follow the procedure concerning

notification of parties’ rights, in this case Roy Cortesi can point to no denial of any right that

would make the hearings any less fair. The error, if any is harmless.” Id.

¶37. In this case, M.A.S. was represented by counsel at the adjudication hearing. At no

point did M.A.S.’s counsel object to or make any complaint about the youth court’s failure

to comply with Mississippi Code Annotated section 43-21-557. Counsel proceeded to

represent M.A.S. and engage in litigation by cross-examining witnesses and called M.A.S.

to testify on her own behalf. As such, any error, if any, is harmless, and this issue without

25
merit.

B. Sufficiency of the Underlying Petition for Educational
Neglect and Sufficiency of the Evidence at the
Adjudication Hearing

¶38. M.A.S. asserts that the State’s petition to adjudicate the minor children neglected was

insufficient on its face to place her on notice that her alleged drug use would be “inquired

into at the adjudicatory hearing and would be the basis for the State’s continued custody of

their minor children.” She further alleges that the testimony at the adjudication hearing was

insufficient to substantiate a finding of neglect.

¶39. The requirements for a petition seeking an adjudication that a child is a neglected

child or abused child are set forth in Mississippi’s Uniform Rule of Youth Court Procedure

20. Rule 20 (c)(4) states in part, “The petition shall set forth plainly and concisely with

particularity: . . . (iii) a statement of the facts, including the facts which bring the child within

the jurisdiction of the youth court and which show the child is a neglected child or an abused

child.” For the purposes of interpreting the Mississippi Youth Court Law, the definition of

“neglected child” has the same meaning as set forth in Mississippi Code Annotated section

43-21-105(l), which states:

(l) “Neglected child” means a child:

(i) Whose parent, guardian or custodian or any person responsible for
his care or support, neglects or refuses, when able so to do, to provide
for him proper and necessary care or support, or education as required
by law, or medical, surgical, or other care necessary for his well-being;
...

26
(ii) Who is otherwise without proper, care, custody, supervision or
support; or . . .

(iv) Who for any reason, lacks the care necessary for his health, morals
or well-being.

See also U.R.Y.C.P. 4.

¶40. In this case, Count I of the petition sets out the allegations from the report received

by CPS on May 22, 2018. More specifically, the petition stated that A.S. had missed twenty-

two days of school since January and that B.S. had missed twenty days of school since

January. Further, the petition alleged that the children “come to school dirty and never have

snacks, as well as it is unknown if there is electricity and running water in the home.” The

central issue of this proceeding was neglect, and clearly the facts of the petition were

sufficient to “bring the case within the jurisdiction of the youth court.” While the petition

did not refer to M.A.S.’s drug use per se, Jones testified at the adjudication hearing that “due

to a history of drug use with the family,” the agency requested M.A.S. and A.A.S. each

submit to a drug screen. Notably, the CPS report that was introduced as an exhibit at the

hearing also stated in part:

The agency has a long history with [M.A.S] and her family. We have been
receiving reports alleging abuse and neglect since April 2, 2002.[13] There
have been [twenty-seven] reports received to the agency concerning the
mother’s drug use, driving while under the influence, poor living
conditions of the home, multiple reports of the children receiving head lice,
and truancy issues. Out of the [twenty-seven] reports, [four] reports have been
evidenced for physical neglect. Two reports were substantiated based off
of the two children testing positive for marijuana at birth.

13
This date most likely is a typographical error and should be April 2, 2012.

27
(Emphasis added). Given M.A.S.’s extensive history with the youth court, it should come

as no surprise to M.A.S. that the court would inquire into potential drug use. Therefore, this

issue is without merit.

¶41. M.A.S. further alleges that the evidence presented at the adjudication hearing was

insufficient to support the adjudication order wherein the minor children were found to be

neglected and removed from her home. However, M.A.S. did not appeal the adjudication

order. Therefore, M.A.S. has waived her argument considering the sufficiency of the

evidence at the adjudication hearing. In any event, the evidence presented, as set forth above,

was sufficient to support the adjudication order.

C. Failure to Conduct a Disposition Hearing in the
Underlying Neglect Proceedings.

¶42. M.A.S. argues that the youth court failed to protect the best interest of the minor

children by failing to comply with Mississippi Code Annotated section 43-21-601(1) (Rev.

2015) and not having a separate disposition hearing following the adjudication hearing.

Section 43-21-601(1) provides:

(1) If the child has been adjudicated a delinquent child, a child in need of
supervision, a neglected child or an abused child, the youth court shall
immediately set a time and place for a disposition hearing which shall be
separate, distinct and subsequent to the adjudicatory hearing.

Again, it is important to note that M.A.S. failed to timely appeal from the adjudication order

or any other order entered as a result of the petition for adjudication. The judgment on

appeal is the judgment terminating M.A.S.’s parental rights, which was entered

28
approximately nineteen months following the adjudication order as a result of a hearing on

the State’s separate petition to terminate parental rights. While this Court recognizes the

Mississippi Supreme Court’s ruling in In re C.R., 604 So. 2d 1079, 1084 (Miss. 1992),

wherein the supreme court remanded that case to the lower court “for failure to follow

[Mississippi Code Annotated section 43-21-601] so that a separate and distinct disposition

hearing be had as required,” there is an important distinction between that case and the case

sub judice. In In re C.R., C.R.’s mother perfected her appeal of the adjudication order within

the time constraints imposed by statute. Id. at 1079-82. In this case, M.A.S. failed to perfect

her appeal from the adjudication order or the disposition order.

¶43. Secondly, M.A.S. was represented by counsel throughout the adjudication process and

counsel never made an objection to the failure to have a separate disposition hearing.

Finally, M.A.S. failed to file any post-trial motions to challenge the youth court’s failure to

conduct a separate disposition hearing. Therefore, M.A.S. has waived her argument

regarding the youth court’s failure to comply with Mississippi Code Annotated section 43-

21-601(1).

D. Alternative to Custody

¶44. M.A.S. argues that there was a reasonable alternative to placing the children in the

Lamar County CPS’s custody. She claims that the youth court erred by continuing to leave

the children in the State’s custody without sufficient evidence warranting their removal. The

Court does note that the children were returned to M.A.S.’s custody for more than ninety

29
days, until M.A.S. and A.A.S. tested positive for drugs, and the children were removed again.

As previously stated, M.A.S. failed to appeal from the initial adjudication order or the

disposition order despite the fact that she was represented by counsel throughout the process.

M.A.S. has waived her claim challenging the sufficiency of the evidence presented in the

adjudication proceedings and therefore will not be discussed further.

II. Did the youth court lack jurisdiction over the TPR action?

¶45. M.A.S. alleges that because she was not properly served with process pursuant to Rule

81(d)(1) of the Mississippi Rules of Civil Procedure and Mississippi Code Annotated section

93-15-107(1)(b) (Supp. 2017), the youth court lacked jurisdiction over the TPR hearing. She

further alleges that the youth court failed to comply with Mississippi Code Annotated section

93-15-113(2) (Supp. 2017) and that she and A.A.S. were not advised of their rights pursuant

to the statute.

¶46. M.A.S. correctly states in her brief that “[a] termination proceeding shall be triable

. . . thirty (30) days after personal service of process to any necessary party . . . .” See Miss.

Code Ann. § 93-15-107(1)(b); accord M.R.C.P. 81(d)(1). In this case, the youth court docket

shows that the petition to terminate parental rights was filed on August 12, 2019. The docket

also shows that a summons was issued for M.A.S. on September 16, 2019, for the TPR

hearing set for October 22, 2019.14 Additionally, there is a docket entry on September 21,

2019, that states, “Summons to [M.A.S] personally served for terminate parental rights

14
The actual summons issued to M.A.S. on September 16, 2019, was included in the
supplemental record.

30
hearing on 22-Oct-2019.” According to the youth court docket, a subsequent summons was

issued for M.A.S. on October 22, 2019, for a TPR hearing on December 10, 2019.15 A

docket entry on October 24, 2019, states “Summons to [M.A.S.] personally served for

terminate parental rights hearing on 10-Dec-2019.”

¶47. M.A.S. argues that the record is void as to any transcripts from a hearing on October

22, 2019, or an order continuing the TPR hearing from October 22, 2019, to December 10,

2019, and therefore as a result, ultimately lost jurisdiction over M.A.S. However, the

supplemental record in this case included three “orders granting motion to continue an

existing hearing” dated October 22, 2019, wherein the youth court ordered in part:

That previous process of the Court shall remain in full force and effect and that
all persons previously served with process to attend the hearing originally set
for October 22, 2019 9:30 AM be and hereby are ordered to attend the hearing
set for December 10, 2019 9:15 AM.

Regardless of the existence of a continuance order, the youth court docket reflects that

M.A.S. was personally served with process for the TPR hearing scheduled for December 10,

2019, well-within the time frame required by Rule 81(d)(1) and section 93-15-107(1)(b).

Further, M.A.S. was present at the TPR hearing on December 10, 2019, and actively

participated in the hearing. Notably, there were no objections to personal service of process

at the TPR hearing. M.A.S.’s argument is without merit.

¶48. M.A.S. further argues on appeal that the youth court erred by not complying with

15
The actual summons issued to M.A.S. on October 22, 2019, and return with proof
of service were included in the supplemental record.

31
Mississippi Code Annotated section 93-15-113(2) and failed to explain certain rights

including the right to counsel, the right to remain silent, the right to subpoena witnesses, the

right to confront witnesses, and the right to appeal at the beginning of the TPR hearing.

Neither M.A.S. nor A.A.S. made any objections at the hearing, and the court proceeded with

M.A.S. testifying on her own behalf.

¶49. While the youth court did not address all the rights set forth in Section 93-15-113(2)

at the beginning of the TPR hearing, the court did address M.A.S.’s right to an attorney and

right to appeal at the onset of the hearing when it considered her motion for a continuance.

The youth court stated in part:

All right. Well, we’re going to proceed today. Again, this Court did give you
the opportunity to retain counsel. You apparently have not done so. So we’re
going to proceed today without the benefit of counsel. And if you want to hire
a lawyer and appeal this, you can.

Before M.A.S. and A.A.S. had the opportunity to cross-examine the State’s first witness, the

court stated:

[M.A.S. and A.A.S.], I want to explain a couple of things to you before I allow
you the opportunity to cross-examine this witness. I’ve already talked to you
about your right to have an attorney present. We’ve gone over all of that. You
also do have the right to remain silent and not speak. You also have the right
to cross-examine witnesses like the social worker here and the right to
subpoena witnesses. You also will have the right to appeal my decision if you
are not happy with it, and a copy of the transcript provided to you. I want to
make sure you understand those rights before you start engaging in this case.

Even though the youth court did not address M.A.S.’s rights at the beginning of the TPR

hearing, they were in fact addressed. M.A.S. does not allege with any specificity any

32
prejudice that occurred as a result of the timing of the court’s explanation of the rights set

forth in Section 93-15-113(2).

¶50. Similarly, in Blakeney v. McRee, 188 So. 3d 1154, 1160 (¶16) (Miss. 2016), the

supreme court considered the failure of the chancery court to make an on-the-record

determination of whether a biological father was entitled to court-appointed counsel before

allowing him to proceed pro se in an adoption proceeding. In that case, the supreme court

determined that the failure to do so was harmless error; it was clear from the record that the

biological father received a fair and adequate hearing, and the presence of an attorney would

have been inconsequential.

¶51. In the case sub judice, the youth court substantially complied with the requirements

set forth in Mississippi Code Annotated section 93-15-113(2). Further, M.A.S. failed to

show with any specificity what, if any, prejudice occurred as a result of the timing of the

court’s explanation of the rights set forth in the statute. We find no error by the youth court

and this issue is without merit. Id. at 1160-61 (¶¶16-18).

III. Did the youth court err in finding that there was clear and
convincing evidence to terminate M.A.S.’s parental rights?

¶52. On appeal, M.A.S. alleges that the youth court erred in finding that the State provided

clear and convincing evidence to substantiate the termination of her parental rights. More

specifically, M.A.S. claims that the GAL failed to conduct an independent investigation and

zealously represent the best interest of the children. She further alleges that the testimony

and evidence presented at trial was insufficient to prove that M.A.S. suffered from habitual

33
alcoholism or other drug addiction or that there was deep-seated antipathy by the children or

substantial erosion of the relationship between her and the children.

A. Sufficiency of GAL Investigation

¶53. On appeal, M.A.S. challenges the sufficiency of the GAL appointment and calls into

question the fact that the order appointing the GAL and the GAL’s report were entered on

the same day as the TPR hearing. Further, she argues that the GAL’s report was inadequate

because it was silent as to “any actual independent investigation performed by the GAL and

silent as to ever speaking with the minor children, the mother, or the fathers.”

¶54. M.A.S. correctly states in her brief that the appointment of a GAL is mandatory in

actions to terminate parental rights pursuant to Mississippi Code Annotated section 93-15-

107(1). Pursuant to statute, Cynthia Re was appointed as the GAL. Re submitted a report

and testified at the TPR hearing. At the hearing, M.A.S. failed to make any objections or file

any post-trial motions in objection to the GAL’s investigation.

¶55. In Kirkley v. Jackson County Department of Child Protection Services (In re J.K.),

304 So. 3d 184, 193 (¶27) (Miss. Ct. App. 2020), this Court addressed a similar argument

made by the biological father for the first time on appeal, stating:

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 . . . 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

34
rights or a remand for further proceedings. This argument is without merit.

¶56. In the case sub judice, M.A.S. waived her argument concerning the sufficiency of the

GAL’s investigation because there was no objection made at the hearing; this issue is raised

for the first time on appeal. Notwithstanding her waiver, M.A.S.’s claim is without merit.

Re was appointed as the GAL for M.A.S.’s children in January 2019, approximately eleven

months before the TPR hearing. Prior to the TPR hearing, M.A.S. attended two additional

review hearings concerning the custody of A.S., B.S., and C.S. on June 18, 2019, and

September 24, 2019. While Re’s report does not identify the breadth of her investigation and

what individuals she interviewed, her testimony at trial revealed her knowledge about the

case. Re testified about the contents of the voluminous CPS reports prepared and reviewed

throughout the adjudication process. According to Re, “I have been following this case.

These children want some permanency.” In her testimony Re also alluded to an interview

with the foster mother Sherrie Vapore and stated, “Contrary to what [M.A.S.] testified to,

when I spoke with Ms. Sherrie Vapore, who is the foster parent . . . she hadn’t heard from

them since . . . October of ‘18.” (Emphasis added). While the GAL’s report may have been

silent as to “any actual independent investigation,” as M.A.S. argued, that does not

automatically suggest that there was not a proper investigation conducted.

B. Habitual Alcoholism or Other Drug Addiction

¶57. M.A.S. claims that the evidence presented at the TPR hearing was not sufficient to

terminate her parental rights pursuant to Mississippi Code Annotated section 93-15-121(c).

35
She asserts that the State failed to prove that she suffered from a drug addiction or that she

failed to comply with any drug or alcohol treatment.

¶58. The grounds for involuntary termination of parental rights are governed by statute.

Mississippi Code Annotated section 93-15-121(c) states that termination of parental rights

is appropriate if it can be proved by clear and convincing evidence that “[t]he parent is

suffering from habitual alcoholism or other drug addiction and has failed to successfully

complete alcohol or drug treatment[.]”

¶59. Both the CPS worker and the GAL testified at the TPR hearing regarding M.A.S.’s

long history with drug abuse. At least two of M.A.S.’s children have been affected by her

drug abuse literally since birth, which was evidenced by the fact that they were born with

marijuana in their systems. The CPS social worker Torjai Ashford testified that M.A.S. and

A.A.S. both had a history of drug use and that drug abuse was ongoing. She testified:

Also, we had received like, twenty-seven reports on this family of drug use,
not going to school, deplorable home, you know, no utilities working in the
home. And four of those was substantiated. Two of those kids were born
with marijuana in their system. This was part of the findings.

(Emphasis added). Further, the record reflects that CPS had been receiving reports for years,

alleging abuse and neglect relating to M.A.S.’s drug use and her driving under the influence

among other allegations of neglect. While the record is unclear as to the exact circumstances

surrounding the children’s previous removal from M.A.S.’s home in June of 2015, Ashford

testified that M.A.S.’s most current family service plan included random drug screens

because of her drug history. According to Ashford, M.A.S. did not complete the goals and

36
tasks assigned in the plan. More specifically, the family service plan stated that M.A.S.

should “submit to random drug screens twice per month at Court Programs. Parent must

remain drug free for all substances.” (Emphasis added). The agency made efforts to send

M.A.S. to take random drug screens on the following dates: July 9, 2018; August 2, 2018;

September 14, 2018; September 28, 2018; October 6, 2018; October 31, 2018; November 7,

2018; November 14, 2018; November 26, 2018; December 7, 2018; and December 10, 2018.

M.A.S. did not take any of the drug screens listed above. Ashford testified that when M.A.S.

and A.A.S. finally submitted to a drug screen on December 11, 2018, both parents tested

positive for multiple drugs including marijuana, amphetamines, and methamphetamine. The

failed drug screen results were entered into evidence as Exhibit 2 at the TPR hearing. When

she was asked to elaborate on why the service plan for M.A.S. and A.A.S. changed, Ashford

testified:

The parents were asked to take random drug screens. They did not take
random drug screens. They kept refusing to take those. The only reason they
took the one in December was because they were ordered by the Judge when
they left the courtroom. They had to go right there and take the drug screen.
. . . They just wouldn’t comply with us. . . . I mean, it was so many drug
screens. It was at least twice a month that they refused. And I would beg
[M.A.S.] to go. Please, I’d say. Your kids are going to be removed if you
don’t. All she would do was cry.

M.A.S. claimed that she and A.A.S. did complete a urine test at Court Programs as requested,

and she stated that those screens were negative. However, there is no proof of those test

results in the record. There is proof in the record that CPS received a report that M.A.S. and

A.A.S. were using their niece’s urine to pass drug screens. Similarly, Ashford testified that

37
M.A.S. had provided her with a fake drug test result.

¶60. The GAL also testified regarding M.A.S.’s drug use and stated in part:

[M.A.S. and A.A.S.] are suffering from a drug addiction and have failed to
successfully complete drug or alcohol treatment as directed by the Court.
There have been refused drug screens back in June of 2018. There is no show
or no appearance for the requested drug screens of July 9 or August 2. Then
the December 11, 2018, drug screen showed positive for methamphetamines
and amphetamines.

(Emphasis added). Again, while M.A.S. claimed that she had taken a few negative drug tests

throughout the adjudication process, she did not provide the youth court proof of any of those

tests at the TPR hearing. Further, by her own admission during cross-examination, M.A.S.

did not deny the fact that she had some issues with drug use. Finally, in its ruling on the

record, the court stated in part, “The Court has always had concerns about their drug

addiction. Those concerns, I believe, by clear and convincing evidence have been

established in this hearing.”

¶61. Similarly, in In re J.K., 304 So. 3d at 186 (¶1), Merle Kirkley appealed the termination

of his parental rights. One of Kirkley’s arguments on appeal was that the youth court erred

in finding there was clear and convincing evidence to support the termination of his parental

rights partly due to his habitual drug use and failure to complete drug treatment. Id. at 194

(¶¶30-31). This Court held in part 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.’. . . 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

38
rights.” Id. at 195 (¶¶36-37).

¶62. In this case, according to the testimony of both Ashford and Re, M.A.S. was given

multiple opportunities to prove her sobriety to the court and comply with the service

agreement and failed to do so. Given the cumulative, clear, and convincing evidence

presented at the TPR hearing, this issue is without merit. The youth court did not err by

finding clear and convincing evidence that M.A.S.’s rights should be terminated pursuant to

Mississippi Code Annotated section 93-15-121(c).

C. Deep-seated Antipathy by the Child or Some Other
Substantial Erosion of the Relationship Between the
Parent and Child

¶63. Finally, M.A.S. claims that the evidence presented at the TPR hearing was not

sufficient to terminate her parental rights pursuant to Mississippi Code Annotated section 93-

15-121(f). She asserts that the State failed to prove that there was a deep-seated antipathy

by the children toward her or an otherwise substantial erosion of her relationship with the

children.

¶64. In L.O. v. G.V., 37 So. 3d 1248, 1254 (¶23) (Miss. Ct. App. 2010), this Court stated,

“[S]ection 93-15-103(3) is clear that only one ground is necessary to terminate parental

rights.” Because we find no error in the youth court’s finding that there was clear and

convincing evidence to terminate M.A.S.’s parental rights pursuant to Mississippi Code

Annotated section 93-15-121(c), a further analysis of M.A.S.’s argument regarding section

93-15-121(f) and the sufficiency of evidence is not necessary.

39
CONCLUSION

¶65. After review of the record, we find no error in the youth court’s decision to terminate

M.A.S.’s parental rights. Therefore, the second amended judgment of the youth court dated

January 28, 2020, is affirmed.

¶66. AFFIRMED.

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

McCARTY, J., DISSENTING:

¶67. The Youth Court terminated the parents’ rights at a hearing where their rights were

not explained to them and where they were without a lawyer. Because the Legislature has

mandated that parents be advised of their rights and, where applicable, have appointed

counsel, I must respectfully dissent.

¶68. “In 2016, the Mississippi Legislature enacted the Mississippi Termination of Parental

Rights Law.” Miss. Dep’t of Child Prot. Servs. v. Bynum, 305 So. 3d 1158, 1161 (¶4) (Miss.

2020). The law directly addresses one of the most important rights in our society. “The

liberty . . . 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.

40
2007).

¶69. Accordingly, the Legislature has decreed that the trial court itself must make a check

of three critical issues “[a]t the beginning of the involuntary termination of parental rights

hearing[.]” Miss. Code Ann. § 93-15-113(2)(a) (Rev. 2018). First, “the court shall

determine whether all necessary parties are present and identify all persons participating in

the hearing[.]” Id. (emphasis added). Second, “the court shall . . . determine whether the

notice requirements have been complied with and, if not, determine whether the affected

parties intelligently waived compliance with the notice requirements[.]” Id. (emphasis

added). Third, “the court shall . . . explain to the parent the purpose of the hearing, the

standard of proof required for terminating parental rights, and the consequences if the

parent’s parental rights are terminated.” Id. (emphasis added).

¶70. These three critical points must be addressed before anything happens at all in the

hearing. The law says “[a]t the beginning of the involuntary termination of parental rights

hearing,” not in the middle, or at some point after the first witness is called, but “[a]t the

beginning.” Id. (emphasis added).

¶71. Furthermore, at the “beginning of the involuntary termination of parental rights

hearing . . . [t]he court shall also explain to the parent” five rights:

(i) The right to counsel;

(ii) The right to remain silent;

(iii) The right to subpoena witnesses;

41
(iv) The right to confront and cross-examine witnesses; and

(v) The right to appeal, including the right to a transcript of the proceedings.

Id. (emphasis added).

¶72. There is a reason the word “shall” is so vital. As established, the termination

proceeding scrapes against a key liberty interest of parents. And both this Court and the

Mississippi Supreme Court have many times concluded that the word “shall” is mandatory.

“A basic tenet of statutory construction constrains us to conclude that, unlike the

discretionary nature of ‘may,’ the word ‘shall’ is a mandatory directive.” Ivy v. Harrington,

644 So. 2d 1218, 1221 (Miss. 1994) (extreme emphasis by the Supreme Court). In that case,

the Supreme Court concluded that the Legislature’s usage of the word “shall” was in effect

a mandate in a paternity case because the invocation of “shall” meant “no discretion is

afforded the trial judge.” Id. (emphasis again by the Supreme Court).

¶73. In acknowledging that words must have meaning, our courts must apply the word

“shall” faithfully, in accord with “our constitutional mandate to faithfully apply the

provisions of constitutionally enacted legislation.” Univ. of Miss. Med. Ctr. v. Easterling,

928 So. 2d 815, 820 (¶23) (Miss. 2006) (requiring adherence to the Legislature’s ninety-day

pre-suit warning in Mississippi Tort Claims Act cases).

¶74. As the majority acknowledges, the trial court did not fulfill its statutory duty under the

law. The Youth Court perhaps impliedly “determine[d] whether all necessary parties [were]

present and identif[ied] all persons participating in the hearing[,]” but a full check of service

42
of process on the parents was not made. See Miss. Code Ann. § 93-15-113(2)(a). Another

notable deviation at the outset of the hearing was that the Youth Court utterly failed to

“explain to the parent the purpose of the hearing, the standard of proof required for

terminating parental rights, and the consequences if the parent’s parental rights are

terminated.” Id.

¶75. The law was simply not followed. The very risks of the hearing itself were not told

to the parents. Under Ivy, there is “no discretion” afforded a trial court to ignore this statute.

¶76. As the majority further explains, at some point the parents were told of their five

rights applicable to a termination hearing. However, as the mother argues on appeal, “[a]t

this time during the hearing, the State had already concluded direct questioning of their first

witness and the [Y]outh [C]ourt had received and marked into evidence 4 exhibits and

engaged with the parents as to any objection to admissibility.” In other words, the car had

already left the garage.

¶77. And as also set out by the majority, the termination proceeding happened while the

parents were without legal counsel. In resolving this clear constitutional error, the majority

relies on a case from the Supreme Court where it found “the chancellor in this case erred in

not making an on-the-record determination . . . whether [the father] was entitled to

court-appointed counsel before allowing him to proceed pro se” in a termination proceeding.

Blakeney v. McRee, 188 So. 3d 1154, 1160 (¶16) (Miss. 2016). The Court found “the failure

to do so was harmless error, as it is clear from the record that [he] was given a fair and

43
adequate hearing, and the presence of an attorney would not have made a difference.” Id.

¶78. There is a key distinction between that case and this one: the parents here did have a

lawyer appointed, but the trial court refused to continue the case so that their court-appointed

lawyer could be present. At the beginning of the termination hearing that would result in her

losing her children, the mother told the trial court, “I have been approved for the attorney for

the Legal Aid, but they said due to the holidays and stuff like that”—with the hearing taking

place on December 10—“they will not have an attorney available until the first of the year

in January.” The mother was told that she should ask the trial court “to keep my case open

and for me to ask the Court for a continuance so they can get [me] an attorney.”

¶79. Despite that the mother was indigent, despite that she had been cleared for an

appointed attorney, and despite that the reason here—proximity to the holidays—was in good

faith, the trial court kept its foot on the gas and refused to continue the case. To force the

parents to proceed with a hearing with witnesses when they were not properly informed of

the risks or provided their legal rights under the law is clear error.

¶80. Given the proof in this record, it seems apparent the parents should have had their

rights terminated. Yet that result cannot come at the cost of violating constitutional rights

and state law. Because the trial court did not follow the Legislative mandate of advising the

parents of their rights, coupled with forcing the hearing to proceed while the parents lacked

counsel, I believe we must reverse and remand: reverse because we must not abide parents

losing their children absent due process, remand to allow them legal counsel at the hearing

44
where “perhaps the oldest of the fundamental liberty interests recognized” in our country is

at stake.

McDONALD, J., JOINS THIS OPINION. LAWRENCE, J., JOINS THIS
OPINION IN PART.

45