In Re Kdg II

68 So. 3d 748, 2011 WL 3276270
CourtCourt of Appeals of Mississippi
DecidedAugust 2, 2011
Docket2010-CA-00231-COA
StatusPublished

This text of 68 So. 3d 748 (In Re Kdg II) 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
In Re Kdg II, 68 So. 3d 748, 2011 WL 3276270 (Mich. Ct. App. 2011).

Opinion

68 So.3d 748 (2011)

In the Interest of Minors K.D.G. II and R.C.G.
K.D.G., Appellant
v.
Winston County Department of Human Services, by Barbara Proctor, Social Services Director, and K.D.G. II and R.C.G., Minors, by and through their next friend, Barbara Proctor, Appellees.

No. 2010-CA-00231-COA.

Court of Appeals of Mississippi.

August 2, 2011.

*749 David E. Bane Jr., Louisville, attorney for appellant.

Office of the Attorney General by Katherine Jane Caldwell, attorney for appellees.

*750 Before LEE, C.J., MYERS and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1. For over six years, KDG's two minor sons had been in the custody of the Winston County Department of Human Services (DHS), while KDG had been in and out of prison. After KDG failed in 2008 to comply with a plan to reunite him with his sons and did not visit them for over a year, DHS petitioned for termination of his parental rights. The Winston County Chancery Court granted termination on two statutory grounds — (1) KDG's failure to contact his sons for over a year and (2) the substantial erosion of the relationship between KDG and his sons.

¶ 2. KDG appeals. He argues DHS failed to prove by clear and convincing evidence that grounds for termination existed. He also claims the chancery court failed to consider whether alternatives to termination would have been in his sons' best interests. We find no error in the chancery court's decision to terminate his parental rights. Therefore, we affirm.

FACTS

¶ 3. KDG was the legal father of both KDG II, born April 2000, and RCG, born September 2002.[1] In February 2002, before RCG was born, KDG went to prison. In July 2003, the Winston County Youth Court determined the children were abused and neglected. It ordered they be placed in the custody of DHS, where they have remained for over six years. While both children had special emotional and psychological needs, KDG II's needs have required placement at a treatment facility.

¶ 4. In November 2005, KDG was released on parole. In March 2006, he returned to prison for a parole violation. He was re-released in November 2006 and did not return to prison until May 2009.

¶ 5. In 2008, KDG requested custody of his sons but questioned the paternity of RCG. In July 2008, KDG underwent a court-ordered paternity test, which proved KDG was RCG's biological father. KDG briefly saw RCG during the DNA test.

¶ 6. Also in July 2008, the youth court issued a permanency order intended to reunite KDG with his sons. The permanency order required KDG to enter into a service agreement with DHS, schedule visitation with both children, and pay $100 a month in child support. It also ordered KDG to undergo psychological evaluation.

¶ 7. The youth court held a review hearing on October 15, 2008. KDG did not attend. The youth court found KDG had not entered into a service agreement, had not made any efforts to visit his children, and had not paid any child support. KDG also had not undergone a psychological evaluation.

¶ 8. In April 2009, DHS filed a petition to terminate. In May 2009, KDG returned to prison. In November 2009, the youth court issued a bench ruling finding that it was in the best interests of the children that KDG's parental rights be terminated. The youth court found KDG had not made any contact with either child in over a year. KDG did have some contact with DHS about his employment status and current address — but never to schedule visitation with his sons. Although KDG testified he had worked several jobs, he had not paid any child support or attempted to provide any care for his sons. The youth court also considered KDG's criminal history, including a conviction for a violent felony.

*751 ¶ 9. The youth court found, by clear and convincing evidence, that DHS had proved: (1) KDG had no contact with either child in over a year, and (2) there had been a substantial erosion of his relationship with both children so that "they do not even know him."

¶ 10. The chancery court incorporated the youth court's bench ruling into a final judgment entered December 4, 2009. The chancellor found it was in the best interests of the children that KDG's parental rights be terminated so that DHS could create a stable and permanent plan for the children's future and allow both children to become be eligible for adoption.

¶ 11. KDG timely appealed.

LAW AND DISCUSSION

I. Standard of Review

¶ 12. When reviewing the termination of parental rights to a minor child, we look for "whether credible proof exists to support the chancellor's finding of fact by clear and convincing evidence," W.A.S. v. A.L.G., 949 So.2d 31, 34 (¶ 7) (Miss.2007) (quoting K.D.F. v. J.L.H., 933 So.2d 971, 975 (¶ 14) (Miss.2006)), keeping in mind "the best interest of the child is the paramount consideration." In re V.M.S., 938 So.2d 829, 832(¶ 6) (Miss.2006) (citing Lauderdale County Dep't of Human Servs. v. T.H.G., 614 So.2d 377, 385 (Miss. 1992)).

II. Statutory Grounds for Termination

¶ 13. "Grounds for termination of parental rights shall be based on one or more of the [eight enumerated] factors" listed in Mississippi Code Annotated section 93-15-103(3) (Rev.2004). If a chancery, family, or county court is satisfied by clear and convincing evidence that grounds for termination exist, it may order termination of a parent's rights. Miss.Code Ann. § 93-15-109 (Rev.2004). See W.A.S., 949 So.2d at 35(¶ 11) (holding only one statutory ground has to be proven to justify termination).

¶ 14. Here, the chancery court found termination grounds existed based on the following factors in section 93-15-103(3):

(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; [and]
(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).

A. No Contact for Over a Year

¶ 15. Relying on In re A.M.A., 986 So.2d 999, 1013-14 (¶¶ 32-33) (Miss.Ct. App.2007), KDG argues the chancery court erred in finding section 93-15-103(3)(b) applied. Because both children were over the age of three, DHS had to show by clear and convincing evidence KDG made no contact with his sons for over a year. Miss.Code Ann. §§ 93-15-103(3)(b), 93-15-109. KDG argues, because he saw RCG in July 2008 and called DHS in December 2008, this evidence defeats a "clear and convincing" finding of no contact.

¶ 16. Although DHS filed its petition to terminate in April 2009, the termination hearing was not held until November 18, 2009. See B.S.G. v. J.E.H., 958 So.2d 259, 270 (¶ 32) (Miss.Ct.App.2007) (calculating *752 year of no contact based on time of termination hearing).

¶ 17.

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Cite This Page — Counsel Stack

Bluebook (online)
68 So. 3d 748, 2011 WL 3276270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kdg-ii-missctapp-2011.