Glenda May v. Harrison County Department of Human Services
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CA-01109-SCT
GLENDA MAY
v.
HARRISON COUNTY DEPARTMENT OF HUMAN
SERVICES
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
1/28/2003
HON. MICHAEL H. WARD
HARRISON COUNTY YOUTH COURT
MICHAEL W. CROSBY
KATHERINE JANE CALDWELL
JULIA ANN TOWNSEND
CIVIL - OTHER
AFFIRMED - 08/05/2004
BEFORE SMITH, C.J., EASLEY AND RANDOLPH, JJ.
EASLEY, JUSTICE, FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Glenda May (May) appeals the decision of the Harrison County Youth Court Judge Michael H.
Ward (youth court) terminating her parental rights. The Harrison County Department of Human Services
(DHS) filed an amended petition to terminate May's parental rights on December 12, 2001. The youth
court conducted its hearing on DHS's request for termination of parental rights on January 30, 2002. On
January 29, 2003, the youth court terminated May's parental rights. May's motion for reconsideration was
denied by the youth court. May filed her notice of appeal to this Court.
FACTS
¶2.
May and her husband, King May (King), had 3 children, 1 female and 2 males. In 1994, DHS
conducted an investigation into May's use of corporal punishment on her children including marks between
her daughter's legs made by a belt. In 1996, DHS again investigated allegations making a referral of neglect
and abuse including marks on the face of one of her sons.
¶3.
In 1998, new allegations of physical abuse were made to DHS regarding the minor children.
According to the testimony of DHS social worker, Lori Harris (Harris), she investigated allegations of
May's suspected abuse and marks on the children identified in the transcript as H. and H.M. From the
record, it appears that children H. and H.M. are May's two male children. Harris testified that child H. told
her that his mother had caused the marks and bruises. She stated that child H. had several bruises to the
lower back and buttocks due to the spanking May administered. Harris further stated that when she spoke
with May, she admitted that she had whipped H. with a board as punishment on the previous night. May
entered into an informal agreement with DHS that she would no longer use corporal punishment on her
children.
¶4.
Again, DHS was involved with the minor children due to accusations that King, the children's
father, molested (raped) his daughter.1 On June 11, 1999, based on the molestation accusations, the youth
court ordered the minor children taken into the custody of the DHS. May disputed that her husband, King,
had molested their child even testifying on his behalf at his bond hearing. King was subsequently convicted.
See May v. State, 806 So.2d 314 (Miss. Ct. App. 2001).2
1
The accusations of molestation was solely as to the female minor child.
2
King's motion for rehearing on his appeal was subsequently denied on January 29, 2002. King,
a Captain Reserve Officer with the City of Gulfport Police Force, was indicted for sexual battery, capital
rape and statutory rape of his 11 year old daughter. The victim testified that she was forced to have oral
and vaginal intercourse over a period of more than 2 1/2 years. The victim's pediatrician had first noticed
the victim's hymenal opening being wider than normal for a girl that age in May of 1997. Another general
2
¶5.
May entered into a service agreement with the DHS which required her to complete parenting
classes, attend counseling at Gulf Coast Mental Health (GCMH) and participate in DHS supervised visits
with the minor children and a psychological evaluation. Even though May had complained about her
counselor and was allowed to switch counselors, she had not completed her court ordered classes at
GCMH by the date of the termination hearing.3 Besides not completing the counseling at GCMH, May
continued to have visits and contacts with King. May had not filed for divorce at the time of the termination
hearing.4
¶6.
On January 30, 2002, at the termination hearing, May for the first time acknowledged that she
believed her daughter's accusations that King had molested her. Until this time, May had stated that she
did not believe the child's accusations. In fact, May testified at King's criminal trial on behalf of the defense
regarding her daughter's character. May, 806 So.2d at 318. The trial court did not prevent May from
giving an opinion as to her daughter's tendency to lie, but it ordered that the character testimony be in the
form of reputation and not specific instances of conduct. Id.
physician examined the victim on June 4, 1999, and concluded that her hymenal ring was no longer in tact.
The victim had a psychological examination that resulted in findings consistent with sexual abuse. In the
psychological examination, she described her father's penis and semen in detail and stated that he placed
"his penis in her vagina and made me suck his private or suck his nipple." See May, 806 So.2d at 316.
3
As stated in her brief, May does not dispute that at the time of the termination hearing she had
not completed the court ordered counseling at GCMH. Her position is that she did not like receiving
counseling at GCMH.
4
Subsequent to the termination hearing, May did file and receive her divorce from King and
complete the classes at GCMH.
3
¶7.
King received a jury trial and was convicted of sexual battery. Id. King was sentenced to 20 years
without parole or probation. Id. The Court of Appeals affirmed the conviction and the sentence. Id.
King voluntarily submitted paperwork to surrender all his parental rights to the minor children.
¶8.
The minor children were appointed a Guardian Ad Litem (GAL). The GAL recommended that
an alternative to termination of parental rights, like durable legal custody, be considered by the youth court.
¶9.
The youth court had a hearing on whether to terminate May's parental rights. The youth court
issued its order holding that May's parental rights be terminated. The youth court denied May's motion for
reconsideration. May now appeals to this Court raising the following issues:
I.
Whether the youth court erred in terminating her parental rights.
II.
Whether the youth court erred in not considering durable legal
custody as an alternative placement.
DISCUSSION
¶10.
The burden of proof in order to establish a case for termination of parental rights is clear and
convincing evidence. See Miss. Code Ann. § 93-15-109 (Supp 2003). However, on appeal, this Court's
standard of review of a youth court judgment is limited; we may reverse only if reasonable men could not
have found as the youth court did beyond a reasonable doubt. In re S.B., 566 So.2d 1276, 1278 (Miss.
1990) (quoting In re M.R.L., 488 So.2d 788, 790-91 (Miss. 1986)). Where a trial judge sits without
a jury, the trial court's factual determinations will not be disturbed where the record contains substantial
supporting evidence. The entire record must be examined and that evidence which supports or reasonably
tends to support the findings of fact made by the trial judge together with all reasonable inferences which
may be drawn therefrom and which favor the lower court's findings of fact, must be accepted. Rice
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Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss. 1987). In G.Q.A. v. Harrison County
Dept. of Human Services, 771 So.2d 331, 334-35 (Miss. 2000), we held that "a Family Court
judgment concerning termination of parental rights will be reviewed under the same standard as a Chancery
Court judgment, which is clear and convincing evidence. See Miss. Code Ann. § 93-15-109 (Supp.
1999)."
I. Termination of Parental Rights
¶11.
When a child has been removed from the home of its natural parents and cannot be returned to that
home within a reasonable length of time because returning to the home would be damaging to the child,
Miss. Code Ann. § 93-15-103 (Supp. 2003) provides, in pertinent part, the grounds for termination of
parental rights:
(3)
Grounds for termination of parental rights shall be based on one or more of the
following factors:
(a)
(b)
(c)
(d)
A parent has deserted without means of identification or
abandoned a child as defined in Section 97-5-1, or
A parent has made no contact with a child under the age of three
(3) for six (6) months or a child three (3) years of age or older for
a period of one (1) year; or
A parent has been responsible for a series of abusive
incidents concerning one or more children; or
When the child has been in the care and custody of a licensed
child caring agency or the Department of Human Services for at
least one (1) year, that agency or the department has made
diligent efforts to develop and implement a plan for return of the
child to its parents, and:
(i)
(ii)
The parent has failed to exercise reasonable
available visitation with the child; or
The parent, having agreed to a plan to
effect placement of the child with the
parent, fails to implement the plan so that
the child caring agency is unable to
return the child to said parent; or
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(e)
The parent exhibits ongoing behavior which would make it
impossible to return the child to the parent's care and custody...:
(ii)
Because the parent fails to eliminate behavior,
identified by the child caring agency or the court,
which prevents placement of said child with the
parent in spite of diligent efforts of the child caring
agency to assist the parent; or
(f)
When there is an extreme and deep-seated antipathy by the child
toward the parent or when there is some other substantial erosion
of the relationship between the parent and child which was caused
at least in part by the parent's serious neglect, abuse, prolonged
and unreasonable absence, unreasonable failure to visit or
communicate, or prolonged imprisonment; or ...
(h)
The child has been adjudicated to have been abused or neglected
and custody has been transferred from the child's parent(s) for
placement pursuant to Section 43-15-13, and a court of
competent jurisdiction has determined that reunification shall not
be in the child's best interest...
(emphasis added).
¶12.
Here, the removal of custody of the minor children by DHS occurred in 1999. At the time of the
hearing on the termination of parental rights was held on January 30, 2002, May still had not completed
the court-ordered counseling at GCMH. May supported her husband, King, in his criminal proceedings
for the molestation of their 11 year old daughter. May testified at King's bond hearing. More important,
May testified at King's criminal trial to discredit her daughter's testimony as to the molestation. May
testified that her daughter had a tendency to lie. Medical documents demonstrated that the child's hymenal
ring was no longer intact and that this was inconsistent with that of a girl her age. Furthermore, the child
provided graphic detailed accounts and description of the molestation which occurred over an approximate
2 1/2 year span of time. However, May acknowledged that she only believed her daughter years later for
the first at the termination of parental rights hearing.
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¶13.
May, herself, had a history with the DHS involving 3 separate incidents of misusing corporal
punishment. This resulted in May entering into a service agreement before the molestation charges came
to light.
¶14.
May had continued to maintain contact with King while in prison. However, at the time of the
hearing, she testified that she had since severed contact with King, and she stated that she planned to get
a divorce. She testified that her most recent visit in January 2002 was to ask King for a divorce. Of
course, the custody of the minor children was taken away in 1999. She admitted that she had not filed for
divorce at the time of the termination hearing. May justified the delay in seeking a divorce on her attempts
to try to get her children back. However, subsequent to the hearing she did receive a divorce from King.
¶15.
The youth court found: (1) "that the Minor Petitioners have been in the care and custody of a
licensed child care agency, or the Harrison County Department of Human Services, for over a period of
one (1) year;" (2) "that the Respondent, Glenda May, has been responsible for a series of abusive incidents
concerning one or more children constituting grounds for termination of their (sic) parental rights pursuant
to Miss. Code Ann. § 93-15-103(3)(c)(1972);" and (3) "that the Respondent, Glenda May, exhibits and
has failed to eliminate ongoing behavior...which prevents placement of the Minor Petitioners with said
Respondent in spite of diligent efforts of the Department of Human Services to assist said Respondent
constituting grounds for termination of their parental rights pursuant to Miss. Code Ann. § 93-15103(3)(e)(ii)(1972)." The youth court further found "that there is a substantial erosion of the relationship
between the Minor Petitioners and the Respondent, Glenda May, which was caused at least in part by said
Respondent's neglect, constituting grounds for termination of her parental rights pursuant to Miss. Code
Ann. § 93-15-103(3)(f)(1972)."
7
¶16.
In S.R.B.R. v. Harrison County Dep't of Human Services, 798 So.2d 437, 445 (Miss.
2001), we affirmed the decision by the youth court to terminate parental rights. We found that: "The
parents deny their children were sexually abused, and their siblings therefore neglected. Of their own
violation they failed to comply with the single requirement of completing the counseling program required
by the court." We further held:
The fact that the mother, as the parents argue, "did not commit any
offense," is not the issue the lower court was required to address. The issue
was whether the mother had complied with the court's requirement to acknowledge the
sexual abuse and successfully complete the particular program designated by the court.
She did not.
Moreover, the trial court was justified in its determination that, because the mother
allied herself with the perpetrator, she was thus unable to protect the children from further
abuse.
Id. at 442 (emphasis added).
¶17.
In S.R.B.R., we found that the Youth Court Judge Michael H. Ward clearly stated that he
disbelieved the parents' testimony that Gulf Coast Mental Health Center (GCMH) could no longer help
them with counseling. The trial judge ruled that failure to complete the plan, as they had agreed, was a
determining factor in terminating of the parental rights. Id. at 444.
¶18.
Similarly, in G.Q.A., 771 So.2d at 334, Youth Court Judge Michael H. Ward ordered the
termination of parental rights based upon the parents' failure to acknowledge that the child was intentionally
abused and their refusal to participate in counseling. This Court affirmed the youth court's decision finding
substantial evidence supporting the abuse. Id. at 336. This Court concluded that: (1) the evidence
supported that the abusive incidents occurred; (2) the parents refused to admit that any intentional abuse
occurred; (3) the evidence supported a substantial erosion in the parent/child relationship; and (4) the
8
child's best interest was served by terminating parental rights and the child remaining in foster care. Id. at
331, 339.
¶19.
Therefore, we find that May's assignment of error is without merit. Substantial evidence exists to
support the youth court's finding that termination of parental rights was in the best interest of the children.
II. Durable Legal Custody
¶20.
May contends that the youth court erred in not considering durable legal custody as an alternative
to termination of parental rights. We do not agree. Durable legal custody was enacted by the Legislature
to serve as an alternative to termination of parental rights. In re S.A.M., 826 So.2d 1266, 1278 (Miss.
2002).
¶21.
The durable legal custody statute, Miss. Code Ann. § 43-21-609 (Rev. 2002), provides:
In neglect and abuse cases, the disposition order may include any of the following
alternatives, giving precedence in the following sequence:
(a)
Release the child without further action;
(b)
Place the child in the custody of his parents, a relative or other person subject to
any conditions and limitations as the court may prescribe. If the court finds that
temporary relative placement, adoption or foster care placement is inappropriate,
unavailable or otherwise not in the best interest of the child, durable legal custody
may be granted by the court to any person subject to any limitations and conditions
the court may prescribe; such durable legal custody will not take effect
unless the child or children have been in the physical custody of the
proposed durable custodians for at least one (1) year under the
supervision of the Department of Human Services. The requirements of
Section 43-21-613 as to disposition review hearings does not apply to those
matters in which the court has granted durable legal custody. In such cases, the
Department of Human Services shall be released from any oversight or monitoring
responsibilities;
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(c)
Order terms of treatment calculated to assist the child and the child's parent,
guardian or custodian which are within the ability of the parent, guardian or
custodian to perform;
(d)
Order youth court personnel, the Department of Human Services or child care
agencies to assist the child and the child's parent, guardian or custodian to secure
social or medical services to provide proper supervision and care of the child;
(e)
Give legal custody of the child to any of the following but in no event to any state
training school:
(i)
The Department of Human Services for appropriate placement;
or
(ii)
Any private or public organization, preferably community-based,
able to assume the education, care and maintenance of the child,
which has been found suitable by the court. Prior to assigning the
custody of any child to any private institution or agency, the youth
court through its designee shall first inspect the physical facilities
to determine that they provide a reasonable standard of health and
safety for the child.
(emphasis added).
¶22.
However, the paramount concern in determining the proper disposition continues to be the best
interest of the child, not reunification of the family. In re Beggiani, 519 So.2d 1208, 1213 (Miss. 1988).
See In re S.A.M., 826 So.2d at 1274, 1279 (durable legal custody was determined to be in the best
interest of the child in order to allow continued DHS monitoring without the requirement of annual reviews
and constant involvement by DHS). See also S.R.B.R., 798 So.2d at 444. Also, in G.Q.A., 771 So.2d
at 336, we emphasized that the polestar consideration in determining disposition is the best interest of the
child. Furthermore, in G.Q.A., a termination of a parental rights case, we stated that:
Congress recently enacted the Adoption and Safe Families Act of 1997 (ASFA), Pub.L.
No. 105-89, 111 Stat. 2115 (1997), in order to increase the safety of children. In
pursuing that goal, ASFA provides that "reasonable efforts" to reunite children with their
parents "shall not be required ... if a court of competent jurisdiction has determined that (i)
the parent has subjected the child to aggravated circumstances (as defined in State law,
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which definition may include but need not be limited to abandonment, torture, chronic
abuse, and sexual abuse." 42 U.S.C.A. § 671(a)(15)(D)(i) (Supp. 2000). Essentially,
ASFA clarifies that a child need not be forced to remain in or be returned to an unsafe
home and allows the States to place the safety and welfare of the child before the
interest of abusive parents.
771 So.2d at 335 (emphasis added).
¶23.
In S.A.M., 826 So.2d at 1278, Youth Court Judge Michael H. Ward's granted durable legal
custody of S.A.M. to her long-time foster parents subject to supervised visitation with the mother rather
than returning the child to her mother. Id. The mother argued that granting durable custody to the foster
parents amounted to terminating her parental rights. Id. at 1278. The mother also argued that the youth
court should have made attempts to reunify her and her child before granting durable legal custody. Id.
at 1274. In affirming Judge Ward's decision, this Court stated:
The fact that under durable legal custody the parent retains some form of residual rights
and responsibilities is a vital and obvious distinction to termination of parental rights.
Another distinction is that a decision to grant durable legal custody is not permanent and
is, therefore, subject to further review and modification by the courts.
Id. at 1279.
¶24.
Here, the youth court stated in its judgment terminating parental rights that " a court of component
jurisdiction has determined that reunification shall not be in the Minor Petitioners' best interest, constituting
grounds for termination of their parental rights pursuant to Miss. Code Ann. § 93-15-103(3)(h)(1972)."
The youth court also found that the children "had been in the care and custody of a licensed child caring
agency, or the Harrison County Department of Human Services, for a period of one year." The youth court
specifically addressed the alternative placement of durable legal custody during final arguments. The youth
court stated that "you can't have a durable legal custodian unless the people have had custody for a year."
The youth court concluded that this was not the case under the facts at bar as May had not had custody
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of her children since June 11, 1999. Miss. Code Ann. § 43-21-609 (b) specifically and clearly provides
that in order to have the disposition alternative of durable legal custody in cases of abuse or neglect, the
child or children must have been in the physical custody of the proposed durable custodians for at least 1
year under the supervision of the Department of Human Services.
¶25.
Therefore, we find no merit to May's assignment of error that the youth court did not consider the
alternative disposition of durable legal custody
CONCLUSION
¶26.
Therefore, for all the foregoing reasons, we affirm the decision of the Youth Court of Harrison
County terminating May's parental rights.
¶27.
AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES, DICKINSON
AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
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