A.C.W. v. J.C.W.

957 So. 2d 1042
CourtCourt of Appeals of Mississippi
DecidedJune 5, 2007
DocketNo. 2006-CA-00337-COA
StatusPublished
Cited by8 cases

This text of 957 So. 2d 1042 (A.C.W. v. J.C.W.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.C.W. v. J.C.W., 957 So. 2d 1042 (Mich. Ct. App. 2007).

Opinion

ISHEE, J.,

for the Court.

¶ 1 On December 20, 2005, the Pearl River County Chancery Court entered a directed verdict denying the termination of the parental rights of the father, J.C.W.,1 regarding his daughter, H.D.W. Aggrieved, the mother, A.C.W., appeals this order. Finding no error, we affirm.

FACTS

¶ 2 The parties to this suit, A.C.W. and J.C.W., were divorced based on irreconcilable differences on July 20, 2000. They had a daughter during the marriage, H.D.W., who was born on September 29, 1999. Prior to the divorce, in January or April 2000, a temporary court order gave A.C.W. custody of the child since J.C.W. did not have a job or anywhere to live. The order granted visitation rights to J.C.W. and ordered him to pay child support. At the time of the filing of this appeal, A.C.W. was engaged, and J.C.W. is married and has a child by his new wife.

¶ 3 On March 17, 2003, the chancellor entered another temporary order granting J.C.W. visitation of H.D.W. for four hours every Saturday morning at Friendship Park. The order allowed the parents to bring visitors, but it explicitly stated that A.C.W.’s parents were not allowed to attend.

¶ 4 At trial, Dr. John Galloway testified for A.C.W. He examined H.D.W. once and met with J.C.W. a few times. It was his opinion, based on his time with 'J.C.W., that the relationship between J.C.W. and the girl was mostly nonexistent, and that was something J.C.W. wanted to change. His testimony concerning J.C.W. revealed that, while J.C.W. always maintained that he would like to have a relationship with [1044]*1044his child, he had previously considered giving up parental rights in light of all the disruptions that had already taken place in their lives.

¶ 5 A.C.W. next called her ex-husband to testify at trial as an adverse witness. According to his testimony, J.C.W. did not visit his daughter after the divorce until July 2001; however, he said that he attempted to visit on numerous occasions but was denied. He testified that he was only allowed to talk to A.C.W.’s parents, and they would make it difficult for him to visit. On an earlier occasion, he retained an attorney to enforce his visitation rights, but he explained that his attorney’s inaction was one of the reasons he failed to visit H.D.W. for some time. Other reasons for his failure to visit his daughter were his unstable financial position and legal problems following the divorce. He also testified that he kept receipts from his purchases at McDonald’s as evidence of his Saturday morning visitations and that he made videotapes of the visitations.

¶ 6 Lastly, A.C.W. took the stand herself and also presented the testimony of her father. They both testified that the child was available for J.C.W. to visit and that he failed to come to visitations on different occasions. According to them, it was J.C.W. who was uncooperative with the visitation. They testified that he would fail to show on Saturday mornings and would send his mother to tell them he could not make it. A.C.W. also claimed that the child’s attitude toward her father changed in that she did not like visiting him at the park anymore.

¶ 7 At the close of the case, the chancellor refused to find by clear and convincing evidence that J.C.W. had abandoned his relationship with H.D.W. While the chancellor noted that there was a six-month period during which J.C.W. did not exercise his visitation, he found that J.C.W. had continued to pay child support during that time, which A.C.W. continued to receive. According to the chancellor, this was evidence that J.C.W. “did not consciously walk away from a relationship with the child.”

¶ 8 The chancellor also refused to find an erosion of the relationship between J.C.W. and H.D.W., which he found had never “been really given a true opportunity to be productive” because of the conflict between the parents. He pointed out that it was A.C.W. who had, since the beginning, frustrated the court’s attempts to allow J.C.W. the visitation to which he was entitled.

¶ 9 The chancery court entered an order dated December 20, 2005, granting J.C.W.’s motion for a directed verdict and denying termination of his parental rights regarding H.D.W. A.C.W. appeals from this order and asserts that the chancellor erred in refusing to terminate J.C.W.’s parental rights.

STANDARD OF REVIEW

¶ 10 Appellate review in a case to terminate parental rights is limited to reviewing the chancellor’s findings under the manifest error/substantial credible evidence test. S.N.C. v. J.R.D., 755 So.2d 1077, 1081(¶ 11) (Miss.2000) (citing Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991)). On appeal, the court will ask whether there was “credible proof sufficient for the trier of fact to find abandonment by a parent based on clear and convincing evidence.” Id. (citing Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992)). However, it is proper to proceed de novo where the trial court has misapplied a controlling rule of law. Id.

ISSUES AND ANALYSIS

¶ 11 A.C.W.’s asserts that the chancellor erred in failing to terminate J.C.W.’s [1045]*1045parental rights because she presented evidence that he failed to exercise visitation or to pay child support and that there was a substantial erosion of the relationship between him and H.D.W.

¶ 12 A.C.W. cites the following statute to support her claims:

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
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(b) 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
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(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.

Miss.Code Ann. § 93-15-103(3)(b), (f) (Rev.2004). Additionally, the chancellor must find grounds for termination by clear and convincing evidence in order to terminate the parental rights of a parent regarding the child. Miss.Code Ann. § 93-15-109 (Rev.2004).

¶ 13 “It is well settled that a parent’s right to raise her children is of a fundamental nature, and is entitled to great protection, but that parental rights may be terminated when the welfare of the children is threatened. M.L.B. v. S.L.J., 806 So.2d 1023, 1026(¶ 8) (Miss.2000) (citing Vance, 582 So.2d at 417).

¶ 14 As far as A.C.W.’s claim that J.C.W. abandoned his daughter, abandonment is any conduct that “evinces a settled purpose to forego all duties and relinquish all parental claims to the child.” S.N.C., 755 So.2d at 1081(¶11); Natural Mother v. Paternal Aunt, 583 So.2d 614, 618-19 (Miss.1991) (citing Ainsworth v. Natural Father, 414 So.2d 417, 419 (Miss.1982)).

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Bluebook (online)
957 So. 2d 1042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acw-v-jcw-missctapp-2007.