R.B. v. Winston Cnty. Dep't of Child Prot. Servs.

291 So.3d 1116

R.B. and A.C.P., Appellants

v.WINSTON COUNTY DEPARTMENT OF CHILD PROTECTION SERVICES, Appellee

NO. 2017-CA-01618-COA

Court of Appeals of Mississippi.

December 17, 2019

ATTORNEYS FOR APPELLANTS: KELLY GUNTER WILLIAMS, RIDGELAND, ANDRE DE GRUY, JACKSON

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: THOMAS S. COLEMAN, JOYCE HILL WILLIAMS MARION, EARL SCALES

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

TINDELL, J., FOR THE COURT:

¶1. Rachel and Alex appeal the judgment of the Winston County Chancery Court terminating their parental rights to their two children, Tina and Aaron.¹ On appeal, Rachel and Alex argue (1) there was insufficient evidence to show that the Winston County regional office of the Mississippi Department of Child Protection Services (CPS) used reasonable efforts over a reasonable amount of time to diligently assist them in complying with their service plans; and (2) the chancellor erroneously found that clear and convincing evidence supported the termination-of-parental-rights (TPR) petition. Because the record contains sufficient credible evidence to support the chancellor's judgment, we affirm the termination of both Rachel's and Alex's parental rights.

FACTS

¶2. Tina was born in 2008, and Aaron was born in 2012. On March 9, 2014, the children entered CPS custody after CPS received information that Rachel and the children were homeless and sleeping in a car in a parking lot. Rachel, Alex, and the children had been staying with Alex's mother. After a disagreement, Alex's mother asked the family to leave her house, and the family had nowhere else to go. On March 25, 2014, the Winston County Youth Court entered an order finding that the children were neglected.

¶3. In May 2014, about two months after the children entered CPS custody, Rachel moved to Oklahoma. The record reflects that she did not physically see the children again for almost three years. Around June 2014, Alex was incarcerated for a parole violation. Testimony reflected that he did not have any extended interaction with the children again for almost three years. In January 2015, both Rachel and Alex entered into service plans with CPS. Rachel's service plan required her to maintain housing and employment in Oklahoma and to maintain phone visits with the children and their social worker. For Alex, who was still incarcerated, the service plan required that he contact the children by phone and letters and participate in services and classes provided by the prison system.

¶4. On February 24, 2015, the youth court entered permanency orders that identified each child's permanency plan as reunification with Rachel and Alex. On August 25, 2015, however, the youth court entered orders that changed each child's permanency plan to adoption. The Winston County office of the Mississippi Department of Human Services (DHS) filed a TPR petition in chancery court on February 3, 2016. The youth court held a permanency hearing on February 23, 2016. During that hearing, the youth court acknowledged that adoption was now the designated permanency plan for both children. DHS filed an amended TPR petition in chancery court on August 30, 2016, to comply with changes to the amended TPR statute. Rachel and Alex each answered the petition and denied that the chancellor should grant it.

¶5. At some point in 2016, Alex was released from prison. In September 2016, Rachel moved back to Winston County from Oklahoma. Upon returning to Mississippi, Rachel initially lived with Alex and his father before moving out because Alex was drinking and threatening her. When the TPR hearing began on May 12, 2017, Rachel was living with Alex's mother, who had previously kicked the family out of her house in 2014. Just prior to the second day of the TPR hearing on July 19, 2017, Rachel secured housing of her own.

¶6. The guardian ad litem (GAL) appointed by the chancellor found that the relationship between the biological parents and the children had substantially eroded due in part to "both parents' prolonged and unreasonable absence and unreasonable failure to visit ...." The GAL further determined that the parents had failed to exercise reasonable visitation or communication with the children while the children had been in CPS custody. The GAL concluded that TPR was in the children's best interest.

¶7. Following two days of evidence and testimony, the chancellor issued his bench ruling on August 29, 2017. He then entered his final judgment on October 25, 2017. The chancellor ordered the termination of Rachel's and Alex's parental rights to both children. In so doing, the chancellor recognized the youth court's prior determination that the children had been neglected and in CPS custody for at least six months. The chancellor also noted the youth court's findings that CPS had developed a service plan for the children's reunification with their parents and "ha[d] made reasonable efforts over a reasonable period of time to diligently assist [Rachel and Alex] in complying with the terms and conditions of the service plan but that [the parents] ha[d] failed to substantially comply with the terms and conditions of the service plan ...." The chancellor concluded that clear and convincing evidence showed TPR was in the children's best interest because reunification was not desirable for obtaining a satisfactory permanency outcome. Citing Mississippi Code Annotated section 93-15-121(d) - (f) (Supp. 2016), the chancellor found that the following grounds supported TPR: (1) Rachel and Alex had demonstrated an unwillingness "to provide reasonably necessary food, clothing, shelter, or medical care for the child[ren]"; (2) they "ha[d] failed to exercise reasonable visitation or communication with the child[ren]"; and (3) their "abusive or neglectful conduct ha[d] caused, at least in part, an extreme and deep-seated antipathy by the child[ren] toward the parent[s], or some other substantial erosion" of the parent-child relationship.

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

STANDARD OF REVIEW

¶9. We review a chancellor's findings of fact regarding TPR "under the manifest error/substantial credible evidence test." Blakeney v. McRee , 188 So. 3d 1154, 1159 (¶13) (Miss. 2016). Thus, we will not reverse when "credible proof exists to support the chancellor's finding[s] of fact by clear and convincing evidence." W.A.S. v. A.L.G. , 949 So. 2d 31, 34 (¶7) (Miss. 2007). We review de novo questions of law, such as statutory interpretation. E.K. v. Miss. Dep't of Child Prot. Servs. , 249 So. 3d 377, 381 (¶16) (Miss. 2018).

DISCUSSION

I. Reasonable-Efforts Requirement

¶10. Rachel and Alex argue that DHS presented insufficient evidence to show that CPS used reasonable efforts over a reasonable period to diligently assist them in complying with their service plans. According to Rachel and Alex, the evidence demonstrated that they substantially complied with their service plans despite CPS's failure to use reasonable efforts to diligently assist them. Rachel and Alex further contend the chancellor misinterpreted Mississippi Code Annotated section 93-15-115 (Supp. 2016) by stating that only the youth court could determine whether the reasonable-efforts requirement had been satisfied.

¶11. Section 93-15-115 provides:

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

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

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

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

(d) Termination of the parent's parental rights is appropriate because reunification between the parent and child is not desirable toward obtaining a satisfactory permanency outcome based on one or more of the grounds set out in Section 93-15-119 or 93-15-121.

(Emphasis added).

¶12. In his bench opinion, the chancellor discussed each of section 93-15-115's requirements that must be proved by clear and convincing evidence before TPR is granted. In considering the reasonable-efforts requirement, the chancellor found:

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

(Emphasis added).

¶13. Upon review, we find that the plain language of section 93-15-115(c) requires "the court hearing a [TPR] petition[,]" which in this case was the chancery court, to find (1) that the youth court had previously held a permanency hearing or permanency-review hearing under the Uniform Rules of Youth Court Practice and (2) that the youth court had previously "found" that CPS...