In Re MLW

755 So. 2d 558, 2000 WL 199816
CourtCourt of Appeals of Mississippi
DecidedFebruary 22, 2000
Docket1998-CA-01226-COA
StatusPublished

This text of 755 So. 2d 558 (In Re MLW) 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 MLW, 755 So. 2d 558, 2000 WL 199816 (Mich. Ct. App. 2000).

Opinion

755 So.2d 558 (2000)

In the Matter of the Petition of M.L.W. and R.R.W. for the Adoption of a Minor Child.
M.L.W. and R.R.W., Appellants,
v.
K.W.C., Appellee.

No. 1998-CA-01226-COA.

Court of Appeals of Mississippi.

February 22, 2000.

*559 Deedy Boland, Tupelo, Attorney for Appellants.

T. Victor Bishop, Fulton, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., LEE, MOORE, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. Natural mother (M.L.W.) and stepfather (R.R.W.) filed suit in Itawamba County Chancery Court to terminate the parental rights of the natural father (K.W.C.) and for adoption of the minor child (K.F.C.) by the stepfather. The chancellor found that the appellants failed to satisfy their burden by proving by clear and convincing evidence that K.W.C. had either abandoned the minor child or that he was mentally or morally unfit, as provided by Miss.Code Ann. § 93-15-103 (Rev.1994). On appeal, M.L.W. and R.R.W. raise the following issues for consideration

I. WHETHER THE COURT ERRED IN CONCLUDING THAT THE APPELLANTS HEREIN FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE NATURAL FATHER, K.W.C., HAD DESERTED OR ABANDONED THE MINOR CHILD BY HAVING NO CONTACT WITH K.F.C., HIS CHILD UNDER THE AGE OF THREE YEARS, FOR A PERIOD OF SIX MONTHS OR LONGER.

II. WHETHER APPELLANTS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT THERE WAS A SUBSTANTIAL EROSION OF THE RELATIONSHIP BETWEEN K.W.C. AND K.F.C. WHICH WAS CAUSED AT LEAST IN PART BY K.W.C.'S SERIOUS NEGLECT, ABUSE, PROLONGED AND UNREASONABLE ABSENCE, UNREASONABLE FAILURE TO VISIT OR COMMUNICATE OR PROLONGED IMPRISONMENT.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On July 12, 1994, M.L.W. and K.W.C. were married. On June 22, 1995, K.F.C. was born. The couple separated in February of 1996. M.L.W. filed for divorce on June 12, 1996. A temporary order was entered on July 16, 1996 granting temporary custody of K.F.C. to the mother with the natural father having supervised visitations with the minor child at the home of his mother. The temporary *560 order also provided that K.W.C. pay $150 per month in child support. K.W.C. failed to file an answer to the complaint for divorce and failed to appear in court. He claimed he never received any notice of the court date. The notice was sent to his mother's house at a time when he was residing elsewhere. A final decree was entered on March 11, 1997 giving M.L.W. full custody of the minor child and adjudging K.W.C. unfit to have visitation privileges. The order provided that K.W.C. would have to petition the court for any visitation.

¶ 4. M.L.W. began dating R.R.W. in October 1996. In March 1997 K.F.C. began calling R.R.W. "Daddy." On April 6, 1997, R.R.W. and M.L.W. were married. In 1998, R.R.W. and M.L.W. had a son together. M.L.W. also has another daughter born before her marriage to K.W.C.

¶ 5. K.W.C. had visitation with his daughter regularly between February and July 1996, at which time M.L.W. stopped the visits because she learned that K.W.C.'s mother was not supervising the visits. K.W.C. once again kept and took care of his daughter for two to three weeks in July 1996. He testified that M.L.W. told him he could not see K.F.C. until they went to court to get the temporary order determining custody, so he took the minor child and kept her and cared for her, (without her mother's permission) until shortly before the court date. M.L.W. testified that she knew K.W.C. had written some bad checks and since she had been unsuccessful in getting her child back on her own, she told the police where he was and they arrested him, allowing her to get K.F.C. back.

¶ 6. K.W.C. has paid approximately $ 470 in child support since the separation. For Christmas 1996 his mom bought a push toy to give to K.F.C. from him because he did not have any money. K.W.C. testified that M.L.W. would not let him give K.F.C. the toy until finally K.W.C.'s mother gave it to the child a few weeks after Christmas. K.W.C. was incarcerated from April 1997 until September 1997 which prevented him from seeing K.F.C. on a regular basis. However, K.W.C. maintains that he visited with his daughter regularly for several weeks while she was at the babysitters without M.L.W's knowledge because the person he drove to work with used the same babysitter. He also testified that he sent her a letter with a poem he wrote for her on her birthday in 1997, which M.L.W. stated she never received. K.W.C's mother also sent a rocking bumble bee to the child from her father for her birthday in 1997 because he was in jail. Finally, for Christmas 1997 he bought her a Tickle Me Cookie Monster and a Talk and Play Tape Recorder set which he stated M.L.W. would not let him give the child. He brought the gifts to court.

¶ 7. In January 1998 K.W.C. went to the Department of Human Services to have them start taking child support out of his checks. At the time of the trial M.L.W. had not yet received any of these checks. K.W.C. petitioned the court for visitation shortly before the beginning of the trial to terminate his parental rights. He testified that he had not done this sooner because he had not had the money for a lawyer. He also stated that he was not aware of the gravity of the situation. He testified that he was unaware that his parental rights could be terminated and he wanted to pay off the bad check charges, get a car to get back and forth to work with and essentially get his life back together before he petitioned for visitation.

¶ 8. K.W.C. testified that M.L.W. would not allow him to see his daughter and that she repeatedly told K.W.C. that he was not her father anymore and that K.F.C. did not need K.W.C. anymore because she had a daddy.

¶ 9. M.L.W. and R.R.W. testified that K.W.C. had not contacted them to try and see the child. Furthermore, they testified that R.R.W. had been the father figure in K.F.C.'s life since August 1996. R.R.W. *561 has a good job which enables M.L.W. to be able to stay at home with the children. R.R.W. testified that he loves K.F.C. as if she were his own and wants to take care of her and will continue to take care of her whether he is able to adopt her or not.

¶ 10. Ms. Robbie Byars was appointed as Guardian Ad Litem for K.F.C. by the chancellor. Ms. Byars recommended termination of K.W.C.'s parental rights. Her report stated that she sent four letters to K.W.C. in an attempt to discuss the pending adoption but K.W.C. never contacted her. K.W.C. testified that he only received two letters and he gave them to his lawyer.

¶ 11. The chancellor denied the petition to terminate K.W.C.'s parental rights and the petition to adopt the minor child. The chancellor explained:

Although not previously ordered to pay child support, [K.W.C.] has clearly not fulfilled his moral obligation to properly support his child; however, the failure alone to pay child support is insufficient to constitute abandonment. In Re: Adoption Of A Female Child, 412 So.2d 1175 (Miss.1982).
While the misdemeanor crimes for which [K.W.C.] was incarcerated do not enhance his character, those infractions are not of such a magnitude to indicate his moral unfitness as a parent. While his conduct which led to his incarceration is by no means excusable, his incarceration did impose an impediment to [K.W.C.]'s ability to provide his child with support and to have contact with his child in other forms.

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Petit v. Holifield
443 So. 2d 874 (Mississippi Supreme Court, 1984)
M.L.W. v. K.W.C.
755 So. 2d 558 (Court of Appeals of Mississippi, 2000)

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Bluebook (online)
755 So. 2d 558, 2000 WL 199816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mlw-missctapp-2000.