B.N. v. K.P. (In re D.A.S.)

391 So.3d 1181

In the MATTER OF the ADOPTION OF D.A.S., a Minor:

B.N.

v.K.P., Individually and as Next Friend, J.P., Individually and as Next Friend, and K.F.

NO. 2023-CA-00381-SCT

Supreme Court of Mississippi.

08/15/2024

NESHOBA COUNTY CHANCERY COURT, HON. JOSEPH KILGORE, JUDGE

ATTORNEY FOR APPELLANT: JANE E. TUCKER, Jackson

BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.

KING, PRESIDING JUSTICE, FOR THE COURT:

¶1. More than five years after the entry of a final decree in an adoption, the natural mother filed a petition to set aside the adoption based on fraudulent misrepresentations that the adoption would be "open." Because the petition is untimely, we affirm the decision of the chancery court.

FACTS AND PROCEDURAL HISTORY

¶2. D.A.P. was born a twin on December 15, 2009, to B.M.N. and K.J.F. in Meridian, Mississippi. K.S.P. and J.E.P., the paternal aunt and uncle of D.A.P. and residents of Texas, adopted D.A.P.’s twin brother on April 23, 2013.¹

¶3. D.A.P. would see her twin brother when he was in Mississippi and when she was in Texas for visits with their paternal grandmother. At some point, however, K.S.P. contacted B.M.N. about separation issues between the twins. K.S.P. and B.M.N. came to a mutual agreement that D.A.P. and her brother should spend more time together. K.S.P., J.E.P., and B.M.N. eventually agreed that K.S.P. and J.E.P. would adopt D.A.P. ¶4. On April 28, 2017, K.S.P. and J.E.P. filed a petition for the adoption of D.A.P.² The petition stated that "[a]ll parties agree that the parental rights of the natural mother, namely [B.M.N.] and the father [K.J.F.] should be terminated as to the minor child as set forth in Section 93-15-103 et seq. of the Mississippi Code Annotated (1972 as amended)." The body of the petition did not refer to the adoption as being an "open" adoption. Yet the notary lines stated:

This day personally appeared before me, the undersigned authority in and for the above named county and state, the above named [signatory], Individually and Next Friend, who after being sworn by me states on oath that all the matters, facts and things contained and set forth in the above and foregoing Petition for Open Adoption are true and correct to the best of [his/her] knowledge and belief.

K.S.P., J.E.P., and B.M.N. each signed the petition. Shortly afterward, K.J.F. signed a consent and joinder to adopt in which he relinquished all claims to D.A.P.

¶5. On June 28, 2017, K.S.P., J.E.P. and B.M.N. filed an Amended Petition for Adoption. Again, the body of the amended petition did not refer to the adoption as being "open," but the petition contained the same notary lines. K.S.P., J.E.P., and B.M.N. signed the amended petition, and K.J.F. signed a consent and joinder to adopt.

¶6. The Chancery Court of Neshoba County filed the final decree for adoption on July 6, 2017.

¶7. On July 7, 2021, B.M.N. filed in the chancery court a petition for obtaining access to adoption records and alleged that K.S.P. and J.E.P. had promised her that "any adoption would be an ‘open adoption’ and explained to [her] that an open adoption allowed [her] to continue to see [D.A.P.], visit with [D.A.P.], have in-person contact, telephone and video contact with [D.A.P.] and that they would NEVE R stop [her] from having contact with [her] daughter." B.M.N. contended that "[a]fter continuous promises and coercion using the ‘open adoption’ area as an inducement to get me to sign the adoption papers, I agreed to sign the papers only if it was where I could have contact with her at any time." B.M.N. stated that she informed K.S.P.’s and J.E.P.’s attorney’s staff member that she would not sign the adoption papers unless it was an open adoption and that the staff member stated "that was the agreement their office had been advised of by their clients B.M.N. requested copies of signed and filed documents in the adoption proceedings.

¶8. On July 8, 2021, the chancellor denied B.M.N.’s request for access to the aforementioned documents because the statute of limitations had run and because there was no good cause as required by Mississippi Code Section 93-17-25.³

¶9. On August 15, 2022, B.M.N. filed a petition to set aside the adoption decree.⁴

An amended petition was filed on September 2, 2022. B.M.N. contended that both K.S.P. and her attorney’s staff had assured her that the adoption would be an open adoption and that B.M.N. would be able to be a part of D.A.P.’s life. Yet after the adoption, B.M.N. was allowed to visit D.A.P. once in December 2017 for approximately ten minutes. And in January 2018, K.S.P. informed B.M.N. that she was not allowed to talk to D.A.P. on the phone and was not to have any further phone contact. B.M.N. continued to write letters to D.A.P. and would receive responses, but contact eventually faded. In December 2021, K.S.P. allowed B.M.N. to visit with D.A.P. for an hour. B.M.N. stated that when she inquired about a subsequent visit, K.S.P. informed her that any visits were "on bold" because D.A.P. "was having issues after returning from the December visit." B.M.N. also asserted that K.S.P. and J.E.P. had allowed D.A.P. to move out of their house for an extended period of time and to reside in K.J.F.’s house with the intention of relinquishing custody, either lay means of a custody change or adoption in Texas.

¶10. B.M.N. asserted that the adoption had been obtained by fraud, coercion, and misrepresentation. B.M.N. asked the chancery court to declare the decree of adoption null and void and to vacate the decree. B.M.N. additionally requested an order requiring K.S.P. and J.E.P. to show cause why they should not be enjoined from placing D.A.P. in the home of a person who has no legal rights. Lastly, B.M.N. requested a temporary restraining order, preliminary injunction, and permanent injunction ordering K.S.P. and J.E.P. to immediately return D.A.P. to her legal and physical custody and requested the costs and expenses for bringing the action.

¶11. Attached to the petition were the following documents:

a. An email sent April 19, 2017, from K.S.P. to B.M.N. with the updated petition for B.M.N.’s signature and an attachment to the email titled "Petition for Open Adoption 2-1-13.-pdf"

b. A second email from K.S.P. to B.M.N. dated April 25, 2017, containing the same document.

c. Letters from D.A.P. to B.M.N. and to her half siblings in B.M.N.’s custody

d. A certified letter dated July 11, 2021, from B.M.N. to K.S.P. that stated, in part:

When we had discussed y’all adopting [D.A.P.], you told me and repeatedly assured me that the adoption would be an open adoption and that I would always be able to stay in contact with her. Additionally, you said I would be able to see her, have in person visits, talk with her on the phone, video chats with her and send letters and pictures back and forth with her. Y’all assured me that y’all would never keep her away from me. Why is it once the adoption went through, you only allowed me to see her once? I only got one phone call with her. After that when I called, you told me that I could not talk on the phone with her anymore. So why did y’all cut off all contact between me and her.

e. An email dated July 15, 2021, from K.S.P. to B.M.N. that stated, in relevant part:

So to answer your questions regarding a verbal agreement before [D.A.P.]’s adoption: yes, I told youthat you could still talk/see her. But things change. You said you understood when I told you after the first few phone calls happened, I spoke with a counselor about [D.A.P.] and she mentioned it would be best for [D.A.P.] to communicate with hand written letters. As it gives her something to hold onto. I never should have had to request that you send [her twin brother] gifts or letters. But I did. So because you choose repeatedly to favor [D.A.P.], in letters, that was my reasoning for asking you not to reach back out if you can not be equal to them both.

¶12. K.S.P. and J.E.P. filed an answer and a motion to dismiss the amended petition to set aside the adoption. K.J.F. joined in K.S.P. and J.E.P.’s pleadings. K.S.P. and J.E.P. contended that B.M.N.’s petition contained "voluminous hearsay statements" and that the petition should be dismissed for violations of the Uniform Chancery Court Rules, Mississippi Rules of Civil Procedure, and Mississippi’s adoption statute. K.S.P. and J.E.P. further argued that B.M.N. failed to state a claim for relief and that her amended petition should be dismissed under Mississippi Rule of Civil Procedure 12(b)(6).

¶13. The chancery court found probative that K.S.P. and J.E.P. had been the parents of D.A.P. for more than five years and that B.M.N. had not appealed the judgment of adoption.⁵ The chancery court concluded that K.S.P., J.E.P., and D.A.P. would be prejudiced if the adoption were set aside on technical grounds and that not setting aside the adoption would be in the best interests of D.A.P. Therefore, the chancellor found that B.M.N. was not entitled to relief under any set of facts that could be proved in support of her claims.

¶14. B.M.N. appealed and raised the following issue: whether the chancellor erred by dismissing B.M.N.’s petition in which it alleged that the consent to the adoption was obtained through a fraudulent and unenforceable promise to allow visitation.

ANALYSIS

[1–3] ¶15. "[A] motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure raises an issue of law, which is reviewed under a de novo standard." Moses v. Rankin Cnty., 285 So. 3d 620, 623 (Miss. 2019) (internal quotation marks omitted) (quoting Rose v. Tullos, 994 So. 2d 734, 737 (Miss. 2008)). An argument that the complaint fails to state a claim upon which relief can be granted "tests the legal sufficiency of the complaint." Id. (internal quotation mark omitted) (quoting Rose, 994 So. 2d at 737). "Thus, ‘[w]hen considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that ...