IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-CA-00950-COA
IN THE INTEREST OF J.K., A MINOR: MERLE APPELLANT GLENN KIRKLEY
v.
JACKSON COUNTY DEPARTMENT OF CHILD APPELLEES PROTECTION SERVICES AND J.L.M.K., A MINOR, BY AND THROUGH HIS NEXT FRIEND, LAQUITA REED
DATE OF JUDGMENT: 06/12/2018 TRIAL JUDGE: HON. SHARON WILLIS SIGALAS COURT FROM WHICH APPEALED: JACKSON COUNTY YOUTH COURT ATTORNEYS FOR APPELLANT: CHAD KENNETH KING CAMERON MATTHEW McCORMICK ATTORNEY FOR APPELLEES: TONYA MICHELLE BLAIR NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED - 10/13/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
BARNES, C.J., FOR THE COURT:
¶1. Merle Kirkley appeals the termination of his parental rights, arguing that the Jackson
County Youth Court (1) lacked jurisdiction over the adjudication of neglect and termination-
of-parental-rights (TPR) proceedings and (2) erred in finding there was clear and convincing
evidence to support the termination of Kirkley’s parental rights. Finding no reversible error,
we affirm.
FACTS AND PROCEDURAL HISTORY ¶2. Kirkley and Cierra Cavanagh had a child, “John,” who was born in November 2014.1
On April 17, 2015, a social worker for the Jackson County Department of Child Protection
Services (CPS) conducted a welfare check on the five-month-old child at a motel in Ocean
Springs, Mississippi. Police found Xanax, marijuana, liquid steroids, three Oxymorphone
pills, and a Suboxone strip in the room. Kirkley and Cavanagh were arrested for possession
of a controlled substance (a misdemeanor), and John was taken into the custody of the
Department of Human Services (DHS).
¶3. On April 21, 2015, the youth court judge appointed Denise Lee as the child’s
guardian ad litem (GAL). Kirkley was arrested again, on April 29, 2015, for possession of
controlled substances in Harrison County. He entered Wings of Life for drug treatment on
May 26, 2015, but left the facility one month later and entered another drug rehabilitation
facility in Warren County in December 2015.
¶4. After three continuances, a youth court hearing was held on May 26, 2015. Kirkley,
Cavanagh, the GAL, CPS/DHS representatives, and John’s foster mother were in attendance
at the hearing. The court ordered that custody of the child remain with the DHS, and an
adjudication hearing was scheduled for June 10, 2015. The order also noted that “the
permanent plan is reunification” and that the permanency hearing would be held on
November 16, 2015. Kirkley was given a drug screen and tested positive for
methamphetamine.
¶5. The following day, May 27, 2015, the Jackson County prosecuting attorney
1 A pseudonym is being used to protect the child’s identity.
2 electronically filed a petition with the youth court, alleging that John was a neglected child,
and a summons was sent to Kirkley. On June 10, the youth court entered an order, stating
that a first call/adjudication hearing had been held and that both parents had denied the
allegations in the petition. The parents were granted supervised visitation with John.
¶6. An adjudication hearing was held on October 26, 2015, with Kirkley attending via
telephone because he was incarcerated in Louisiana for a parole violation. Both Kirkley and
Cavanagh withdrew their former denials and entered a plea of no contest; so the child was
adjudicated as a neglected child on the counts contained in the petition. Kirkley and
Cavanagh waived the waiting period for disposition, and the youth court proceeded with that
hearing. See Miss. Code Ann. § 43-21-601 (Rev. 2015). The DHS outlined the tasks the
parents needed to complete for reunification with John, including drug screens, parenting
classes, and aftercare programs. Specifically with regard to Kirkley, the DHS stated that he
would be required to complete an alcohol and drug treatment program. Kirkley agreed to
these requirements.
¶7. On April 4, 2016, a Harrison County Circuit Court grand jury indicted Kirkley for
two counts of possession of a controlled substance, stemming from his April 29, 2015 arrest.
The youth court entered an order on April 19, 2016, stating that a permanency hearing was
held with neither parent in attendance. The court also noted:
Merle Kirkley failed to complete [alcohol and drug] treatment, and later was arrested on August 1, 2015. Since then Mr. Kirkley was ordered to drug court and he was participating in the love in action ministries in Laurel, MS. I spoke with the director of the program on April 18, 2016, and she indicated that “Merle is on the run.” She indicated that he left the program.
3 The youth court adopted the permanency plan for “reunification with a parent or primary
caretaker,” as well as the concurrent plan for adoption, finding them in the child’s best
interest. The court further concluded, however, that the DHS had “documented compelling
and extraordinary reasons why termination of parental rights would not be” in John’s best
interest at that time.
¶8. Kirkley was arrested in Louisiana and incarcerated at West Baton Rouge Parish
Detention Center from April 23, 2016, to October 25, 2016. On July 11, 2016, a plan review
hearing was held, wherein the youth court modified the permanent plan from reunification
to TPR/adoption. Although neither parent attended the hearing, both parents were granted
supervised visitation upon arrangement with the CPS.
¶9. A permanency review hearing was held on October 19, 2016. Kirkley attended via
telephone. The youth court determined that the DHS had made reasonable efforts to
effectuate a plan to meet the needs and best interest of the minor and accepted the
recommended permanency plan of TPR/adoption. A permanency hearing was scheduled for
April 17, 2017, and the youth court ordered Kirkley to keep his address and telephone
number updated and to notify the court if he wished to participate in the permanency hearing
via telephone.2
¶10. Kirkley entered a guilty plea to one count of possession of a controlled substance in
the Harrison County Circuit Court on March 20, 2017, and he was sentenced to serve three
2 The court’s order noted Kirkley’s address as “C/O Inmate #662020, West Baton Rouge Detention Center, D Dorm, Bed 8, P.O. Box 620, Port Allen, LA 70767.”
4 years in the custody of the Mississippi Department of Corrections (MDOC).3 Kirkley was
given a new family-service plan on March 23, 2017, requiring him to submit to random drug
screens, “enroll and complete an after care program for a minimum of [twelve] months
within five days of completion of inpatient treatment as approved by the [CPS], . . .
[p]rovide a safe, stable, drug and violence free home for [John],” and maintain contact with
the child and the CPS. On May 8, 2017, the youth court entered an order continuing the
hearing until May 17, 2017. The court’s order noted Kirkley’s mailing address was “C/O
MDOC #150090, CMCF, 3794 Hwy 468, Pearl, MS 39208.”
¶11. On March 27, 2017, the DHS filed a TPR petition with the youth court, which noted
the couple’s (1) habitual drug use, (2) failure to complete alcohol and drug treatment, (3)
unwillingness to provide “reasonably necessary food, clothing, shelter, or medical care for
the child,” and (4) failure to “exercise reasonable visitation or communication with the
child.” The petition asserted that termination of Cavanagh’s and Kirkley’s parental rights
was “appropriate,” as reunification between Cavanagh or Kirkley and John was not
“desirable towards obtaining a satisfactory permanency outcome.”
¶12. On May 17, 2017, the youth court held the permanency hearing, with the GAL,
CPS/DHS representatives, foster mother, and Kirkley present. The DHS was unable to
locate Cavanagh, and it was later discovered she was in Illinois with family but planned to
enter a rehabilitation facility in California. The court found that the DHS had made
reasonable efforts towards the permanency plan of reunification previously adopted on April
3 As part of a plea bargain, Count II was retired to the files.
5 19, 2016. The youth court set a TPR hearing for August 8, 2017, and appointed Kirkley an
attorney to represent him at that hearing. A week later, on May 25, 2017, the youth court
issued an amended order, which stated that the permanency plan for reunification was “no
longer appropriate . . . and [that] the permanency plan of TPR/adoption [was] appropriate
and in the best interest of [John.]” Cavanagh filed a motion for a continuance in August
2017, which the youth court granted, rescheduling the hearing for November 7, 2017.
¶13. The GAL, CPS/DHS representatives, foster parents, Kirkley, and Cavanagh were
present at the November 7 hearing, along with Kirkley’s appointed attorney. At the hearing,
Kirkley acknowledged his prior criminal history, including a malicious mischief conviction
in 2009 and a business burglary conviction in 2012. He also agreed that he had been
incarcerated for a majority of time that John was in the DHS’s custody and was unable to
complete his service plan.
¶14. Gloria Sims, the DHS social worker assigned to the case, testified that Kirkley had
been given two service plans, one in 2015 and one in 2017 after he had been incarcerated.
The 2017 plan stated that Kirkley needed in-patient treatment and “to maintain visitations
with child as approved by [CPS].” Because he was incarcerated, he was allowed to write
letters to the child. Kirkley was also to obtain and maintain financial stability, have random
drug screens, “[r]efrain from physical and verbal altercations,” and enroll in aftercare upon
release from prison. Sims testified that Kirkley had not completed the service plan. Sims
also testified that Kirkley had seen John only six times since the child had been in DHS
custody (over two years), specifically noting that Kirkley had not seen John since March
6 2016 due to his incarceration because the agency does not take children to visit inmates.
Sims opined that there was a substantial erosion of the relationship between Kirkley and his
son.
¶15. The TPR hearing was continued until January 25, 2018, and the permanency review
hearing was continued until April 16, 2018. Sims again discussed the DHS’s efforts to help
Kirkley complete his service plan, but, as mentioned in the prior hearing, the agency was
“very limited” in what it could do except to tell him to “participate in any and all services
or programs that they have while they’re incarcerated.” A December 27, 2017 order from
the Warren County Circuit Court was also entered into evidence, stating that Kirkley’s prior
suspended sentence for business burglary had been revoked. The circuit court sentenced
Kirkley to seven years in the custody of the MDOC, “suspended upon completion of the
Jackson County Restitution Center, and that upon completion of the Restitution Center, that
the defendant be placed on post release supervision for a period of five (5) years.” Kirkley
was also ordered to pay $4,177.50 in unpaid fines, fees, and assessments. The January 25
hearing was continued until March 1-2, 2018. Both Kirkley and Cavanagh were present at
the March 2018 TPR hearing, as well as Kirkley’s attorney, the GAL, the foster parents, and
various DHS representatives.
¶16. On April 16, 2018, after hearing all the testimony, reviewing the evidence, and
considering the GAL’s report and testimony from the November 7, 2017 hearing, the youth
court issued its findings of fact and conclusions of law. The youth court determined that
Kirkley “ha[d] been incarcerated for the majority of . . . [John’s] life . . . [and] ha[d] a
7 history, by his own admission, of drug use and criminal activity.” The court also noted that
due to Kirkley’s continual incarceration and the child’s young age, Kirkley had “not been
able to sustain a relationship with [John.]” Concluding that Kirkley’s “pattern of criminal
behavior and drug use [was] not likely to change in the future,” the youth court found that
termination of Kirkley’s parental rights was in the child’s best interest.4 On June 12, 2018,
the youth court entered its final judgment terminating Cavanagh’s and Kirkley’s parental
rights, citing grounds for termination as set forth in Mississippi Code Annotated section 93-
15-121(c)-(f) (Supp. 2017). Aggrieved, Kirkley appeals from the youth court’s judgment.
STANDARD OF REVIEW
¶17. This court’s standard of review of a judgment terminating parental rights is limited
to whether the trial court’s decision was manifestly in error or clearly erroneous. In re
A.M.A., 986 So. 2d 999, 1009 (¶21) (Miss. Ct. App. 2007) (citing G.Q.A. v. Harrison Cnty.
Dep’t of Human Servs., 771 So. 2d 331, 335 (¶14) (Miss. 2000)). “Under this standard, we
will uphold [a youth court’s] decision unless that decision is not supported by ‘substantial,
credible evidence, giving deference to the youth court’s findings of fact.’” Id. (quoting
G.Q.A., 771 So. 2d at 335 (¶14)).
DISCUSSION
I. Whether the youth court had jurisdiction over the adjudication and TPR proceedings.
¶18. Mississippi Code Annotated section 43-21-451 (Rev. 2015) provides in part:
4 The court also terminated Cavanagh’s parental rights, but because Cavanagh is not a party to this appeal, we will not address the court’s findings with regard to the termination of her parental rights unless pertinent to the issues Kirkley has raised.
8 All proceedings seeking an adjudication that a child is a delinquent child, a child in need of supervision, a neglected child or an abused child shall be initiated by the filing of a petition. Upon authorization of the youth court, the petition shall be drafted and filed by the youth court prosecutor unless the youth court has designated some other person to draft and file the petition.
(Emphasis added). Although Kirkley acknowledges that the prosecuting attorney submitted
the petition with his digital signature through the Mississippi Youth Court Information
Delivery System (MYCIDS) on May 27, 2015, he contends that the petition was not properly
filed with the clerk’s office. Thus, Kirkley claims that the youth court was without
jurisdiction to adjudicate John as a neglected child and, likewise, to terminate Kirkley’s
parental rights. Kirkley further reasons that his service of summons was defective because
“[w]ithout a filed petition, there is no petition.” (Emphasis added). See Miss Code Ann.
§ 43-21-505(1) (Rev. 2015) (Unless otherwise provided, “service of the summons shall be
made personally by delivery of a copy of the summons with a copy of the petition in a sealed
envelope attached to the summons.”). We find no merit to either claim. With his certified
digital signature, the prosecuting attorney submitted the petition to the clerk’s office, and the
record indicates that the petition was filed on the youth court’s general docket as Cause No.
30-YC-2015-P-277-1(284042) on May 27, 2015.5
¶19. Kirkley also argues that the summons failed to “inform him of his right to counsel or
his right to a continuance for a reasonable time to consult with counsel.” Mississippi Code
Annotated section 43-21-503 (Rev. 2015) provides a template for the form of summons and
contains the following language: “You have a right to be represented by an attorney. You
5 On January 18, 2006, the Mississippi Supreme Court authorized the use of digital signatures on documents issued by the youth courts in the state using the MYCIDS system.
9 are requested to immediately notify the youth court of the name of your attorney.” Section
43-21-503 provides that the form of the summons should “substantially” conform to the
statute’s language. Id. Rule 22 of the Uniform Rules of Youth Court Practice also states
that “[t]he form of the summons shall be pursuant to section 43-21-503” and contains an
additional notice to be placed at the bottom of the summons addressing various costs that
a party may be required to pay. Kirkley’s summons contained this required notice.
¶20. We find the summons issued to Kirkley, notifying him of the June 10, 2015
adjudication hearing, “substantially” complied with section 43-21-503 and Rule 22. While
the summons did not specifically contain the phrase, “You have a right to be represented by
an attorney,” it did state the following in capital letters and bold type: “IMPORTANT
NOTICE: . . . MERLE KIRKLEY YOU MUST BE REPRESENTED BY AN
ATTORNEY IN THIS CAUSE UNLESS THE RIGHT TO LEGAL
REPRESENTATION IS WAIVED.” Moreover, the youth court judge appointed counsel
to represent Kirkley in subsequent proceedings. Thus, unlike the cases cited in Judge
McCarty’s separate opinion, we find Kirkley was given notice of the adjudication
proceedings and informed that representation by counsel was a right that could be waived.
We have also found no requirement in the youth court practice rules or applicable statutes
that the summons must contain language informing a party of a right to a continuance.
Because Kirkley has not demonstrated that service of process was defective, or shown any
prejudice as a result of any alleged defect, we find this issue is without merit.
II. Whether the youth court erred in finding the termination of Kirkley’s parental rights was supported by clear and convincing
10 evidence.
¶21. In its June 12, 2018 “Judgment Terminating Parental Rights,” the youth court found
by clear and convincing evidence that it was in the best interest of John that Kirkley’s and
Cavanagh’s parental rights be terminated, citing section 93-15-121(c)-(f) of the Mississippi
Code,6 which sets forth the grounds for involuntary termination of parental rights and
provides in pertinent part:
Any of the following, if established by clear and convincing evidence, may be grounds for termination of the parent’s parental rights if reunification between the parent and child is not desirable toward obtaining a satisfactory permanency outcome:
....
(c) The parent is suffering from habitual alcoholism or other drug addiction and has failed to successfully complete alcohol or drug treatment;
(d) The parent is unwilling to provide reasonably necessary food, clothing, shelter, or medical care for the child . . . ;
(e) The parent has failed to exercise reasonable visitation or communication with the child;
(f) The parent’s abusive or neglectful conduct has caused, at least in part, an extreme and deep-seated antipathy by the child toward the parent, or some other substantial erosion of the relationship between the parent and the child[.]
Miss. Code Ann. § 93-15-121(c)-(f). The youth court determined that both parents
6 In 2016, the Legislature amended the Mississippi Termination of Parental Rights Law, deleting the prerequisites formerly provided in section 93-15-103(1) and setting forth the requirements for termination of parental rights in sections 93-15-115 to 93-15-121. See 2016 Miss. Laws ch. 439, § 9 (H.B. 1240). These new statutes were enacted prior to the TPR hearings and were cited in the youth court’s findings of fact and final judgment.
11 suffer[ed] from habitual alcoholism or other drug addiction and [had] failed to successfully complete alcohol and/or drug treatment, . . . [were] unwilling to provide reasonably necessary food, clothing, shelter, or medical care for [John], . . . failed to exercise reasonable visitation or communication with the child, . . . [and that their] abusive or neglectful conduct ha[d] caused, at least in part, an extreme and deep-seated antipathy toward the parent[.]
Kirkley appeals from the judgment, claiming that the youth court failed to make specific
findings of fact regarding the grounds for termination of Kirkley’s parental rights and erred
in adopting the GAL’s recommendation, which he claims failed to show that the GAL made
any independent investigation.
A. The GAL’s Findings
¶22. Mississippi Code Annotated section 93-15-107(1)(d) (Supp. 2016) requires that a
GAL be appointed to protect the interest of the child in a termination-of-parental-rights case.
A GAL’s requirements are to “be competent, without interests adverse to the child, and
adequately informed as to her duties,” as well as “to act as a representative of the court and
to assist the court in protecting the interests of an incompetent person by investigating and
making recommendations to the court.” R.L. v. G.F., 973 So. 2d 322, 325 (¶11) (Miss. Ct.
App. 2008) (citation and internal quotation marks omitted).
¶23. At the March 2018 hearing, Kirkley’s attorney objected to the admission of the
GAL’s report as hearsay, but the youth court judge overruled the objection, noting that a
GAL report is required. Kirkley argues on appeal that the court erroneously relied on the
GAL’s report because there is no documentation by the GAL that she “ever personally
observed, or interviewed or even spoke to the child, the father, or the mother.”
¶24. It is admittedly unclear from the record whether the GAL met or interviewed the child
12 or Kirkley independently. However, in R.F. v. Lowndes County Department of Human
Services, 17 So. 3d 1133, 1139 (¶20) (Miss. Ct. App. 2009), this Court held that while it
“may be appropriate” for the GAL to contact or interview the natural parent, it is not
required. As the record indicates, Kirkley was incarcerated during much of this period.
¶25. With regard to a GAL’s failure to conduct an interview with the child, the supreme
court has stated that it would be difficult “to imagine that a [GAL], without ever visiting the
children he/she represents, can be fully informed as to their best interests.” M.J.S.H.S. v.
Yalobusha Cnty. Dep’t of Human Servs. ex rel. McDaniel, 782 So. 2d 737, 741 (¶16) (Miss.
2001). In M.J.S.H.S., the GAL based his recommendation that the mother’s parental rights
should be terminated “on records and reports from [DHS], and conversations with [the social
worker] and the [child’s therapist].” Id. at 739 (¶7). The GAL did not speak with the
children or mother. Id. The supreme court vacated the termination of parental rights and
remanded for a hearing due to the GAL’s failure “to ‘zealously’ inquire into and protect [the
children’s] best interest.” Id. at 741 (¶18). A year later, in D.J.L. v. Bolivar County
Department of Human Servs. ex rel. McDaniel, 824 So. 2d 617, 622 (¶17) (Miss. 2002), the
supreme court remanded for a limited hearing due to the GAL’s reliance on the transcript
from the termination hearing and failure to provide a report/recommendation until almost
one year after the TPR order. The GAL’s report “merely acknowledge[d] that the [GAL]
agree[d] with the recommendation of the Bolivar County CASA worker in that the son and
daughter should remain in the custody of DHS with plans of attempting adoption.” The
supreme court further noted:
13 There is nothing in the record to indicate that the guardian ever talked privately with the children as required by M.J.S.H.S. There was no independent report presented to the trial court during the hearing or prior to the judge’s decision. The guardian did not testify, as has occurred in some cases, but only limited himself to the cross-examination of other witnesses.
Id.
¶26. “[T]he sole reason for the appointment a [GAL] is to ensure that the best interest of
a minor child is fully sought out and protected.” M.J.S.H.S., 782 So. 2d at 741 (¶17) (citing
Miss. Code Ann. § 93-15-107 (Rev. 1994). In this case, incorporating the GAL’s findings
into its judgment, the youth court determined that the GAL was “experienced and qualified”
and “did a thorough and competent investigation.” We agree. Lee, the GAL, participated
in every youth court hearing and listened to testimony by Kirkley, Cavanagh, the foster
mother, and Sims. Further, unlike D.J.L., Lee provided a thirteen-page report and
recommendation on November 7, 2017, which included an extensive and detailed case
history of the court hearings and all visits/communications between the child, natural
parent(s), the DHS, and the foster parents, dating from April 17, 2015, to October 25, 2017.
With regard to the child’s well-being, the GAL’s report indicates specific knowledge of the
child’s development while in custody, stating:
[John] remains in the home of his foster family . . . where he was placed on the date of custody, April 17, 2015, at the age of five months. [John] will turn [three] years old . . . [and] will have celebrated all three (3) of his birthdays in the State’s custody.
[John] is a happy, smart child. He can count to 20, knows most of his ABC’s and his primary colors. He is very verbal[,] and his pediatrician says he is more on the level of a 4-5 years old, according to the foster mother. He has no known medical issues.
14 [John] loves all things outdoors and his favorite thing is to help his foster dad, who is a mechanic, do anything that requires working with tools. He is bonded with the immediate and extended foster family and refers to them as daddy, mama, sissy, nana, etc.
The report concluded, “[Kirkley] has had very few visits with the child since the date of
custody as he has been incarcerated. Currently, it is my understanding that he is serving a
three (3) year sentence. Due to his incarceration and lack of contact[,] the father does not
have a bond with the child.” Although Kirkley claims that the GAL’s conclusion indicates
that her knowledge of the case is simply that—just an “understanding”—nothing in the
evidence or Kirkley’s testimony contradicted the GAL’s findings. Lee also testified at the
hearing as to her findings in the report, and the testimony by the foster parent and Sims
corroborated the GAL’s report/case history.
¶27. At trial, Kirkley’s attorney did not object to the sufficiency of the investigation
conducted by the GAL; nor did he file any post-trial motions concerning the GAL
investigation or lack thereof. Consequently, because the issue is now raised for the first time
on appeal, the youth court never had an opportunity to address it. It is important to note that
the order appointing the GAL for purposes of the TPR hearing in this case was to represent
the “best interest” of the child and did not command a separate investigation from that
already conducted by DHS.
¶28. Accordingly, because the findings in the GAL’s report are consistent with the
evidence and Kirkley’s own testimony, we find that, in this instance, any alleged failure by
the GAL to visit with Kirkley or John independently does not warrant either vacating the
youth court’s termination of Kirkley’s parental rights or a remand for further proceedings.
15 This argument is without merit.
B. Termination of Parental Rights Factors
¶29. Kirkley also contends the youth court’s conclusions concerning the termination of his
parental rights were not supported by clear and convincing evidence. We will address, in
turn, each of the factors discussed by the court in its findings.
i. Habitual Alcoholism and Drug Addiction
¶30. The youth court found in its April 19, 2016 order that Kirkley had “failed to complete
[alcohol and drug] treatment, and later was arrested on August 1, 2015.” Kirkley claims that
the youth court erred in finding that he suffered from alcoholism or drug addiction and that
he had failed to successfully complete alcohol and drug treatment programs.
¶31. Kirkley was arrested twice in April 2015 for possession of controlled substances. He
contends that his incarceration restricted his opportunities to comply with the court’s
requirement, but as CPS argues in its brief,
[Kirkley] did not remain incarcerated throughout the entire case. There were several times that he was free and capable of showing [DHS] that he could maintain a stable, drug free lifestyle. However, it was [his] choice[] to continue to engage in criminal behavior and drug use that prevented him from proving that he could maintain that lifestyle.
As the court noted, although Kirkley “was ordered to drug court and . . . was participating
in the love in action ministries in Laurel, MS,” the program’s director told the youth court
judge that Kirkley had left the program. The only evidence presented by Kirkley that he
completed any program was a certificate from a “Life Learning Program” while incarcerated
that was not approved by the court or CPS. Thus, we find no error in the youth court’s
16 finding that Kirkley suffered from habitual alcoholism or drug addiction and failed to
complete alcohol/drug treatment.
ii. Unwillingness to Provide Reasonable Necessary Food, Clothing, Shelter, or Medical Care
¶32. We further find no error in the youth court’s determination that Kirkley was
“unwilling to provide reasonably necessary food, clothing, shelter, or medical care for the
child.” In April 2015, while under the parents’ care, the child was found in a motel room
with controlled substances present. When asked at the November 2017 TPR hearing if he
agreed that he “ha[d] not been able to provide [the] child a stable, drug-free and violence-
free home environment because [he had] been incarcerated,” Kirkley replied, “Yes, ma’am.”
Kirkley’s pattern of criminal behavior and his failure to contribute to the child’s well-being
during the thirty-one months John was in the DHS’s custody constituted clear and
convincing evidence that Kirkley was unwilling to provide adequate care for the child.
iii. Failure to Exercise Reasonable Visitation or Communication with Child
¶33. With regard to Kirkley’s claim that he was deprived of chances to interact or
communicate with the child, the DHS social worker, Sims, explained at the November 2017
hearing that the agency’s policy is not to take children to visit an incarcerated parent.
Subsequently, at the January 2018 hearing, when Sims was asked if she felt “that [DHS]
could have made any additional efforts as far as reunification with Mr. Kirkley,” she replied,
“With Mr. Kirkley, no. Again, as you see, he is still incarcerated, and we’re very limited
with what we can do.” The GAL’s report indicated that DHS representatives visited Kirkley
17 in Harrison County detention facilities in February and March 2017, but noted that “there
[was] no clear release date.” As Sims aptly noted at one of the hearings,“[I]t was not the
agency[’s] choice that Mr. Kirkley decided to be in and out of jail[.]” We find the court’s
determination that Kirkley “failed to exercise reasonable visitation or communication with
the child” is supported by the evidence.
iv. Abusive or Neglectful Conduct Causing Extreme and Deep-seated Antipathy by the Child toward the Parents
¶34. The youth court found that Kirkley was unable to sustain a relationship with his son
due to the child’s young age and Kirkley’s incarceration. Kirkley argues that his
incarceration cannot be the sole basis for finding his relationship with John was eroded or
non-existent, and he claims the relationship was “worsened by the youth court and [DHS].”
Noting his letters addressed to the youth court, Kirkley contends that he had made attempts
to establish a relationship with the child.
¶35. “A finding of substantial erosion of the parent/child relationship necessarily involves
a consideration of the relationship as it existed when the termination proceedings were
initiated.” In re K.D.G. II, 68 So. 3d 748, 752-53 (¶22) (Miss. Ct. App. 2011) (quoting
G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 338 (¶29) (Miss. 2000)).
For over a year prior to the TPR proceedings, John remained in DHS custody, with minimal
contact with his natural father due to Kirkley’s incarceration. At the time the termination
proceedings were initiated, Kirkley was still incarcerated, and John had been in foster care
for almost two years. As noted by the GAL in her report, John identified the foster parents
18 as his parents, calling them “daddy” and “mama.” The GAL further remarked in her
testimony that she was not sure that “the child would even recognize [Kirkley].”
¶36. In its findings of fact and conclusions of law, the youth court recognized that
“[a]lthough incarceration cannot be the sole basis for termination, the results, i.e. erosion or
non-existence of the relationship, can be considered a significant factor when determining
whether rights should be terminated.” (Citing In re Clark, 611 P.2d 1343, 1345 (Wash. Ct.
App. 1980)).7 We addressed a similar situation in In re K.D.G. II, 68 So. 3d 748, 753 (¶22)
(Miss. Ct. App. 2011), where the father had been incarcerated for three of the six years his
children were in the custody of the DHS. This Court found clear and convincing evidence
to support the youth court’s termination of parental rights, holding:
Here, the eroded relationships were a result of KDG’s actions. . . . [T]he youth court provided KDG the opportunity to act as a father to his sons through complying with the permanency order—an opportunity, the youth court found, he totally walked away from. The youth court weighed this along with the fact KDG had been out of jail for over a year and a half prior to the permanency order without making significant efforts to communicate with or support his sons.”
Kirkley’s illegal activities and continuous incarceration were of his own making; it was not
the fault of the court or the DHS. Further, we reiterate the CPS’s argument that Kirkley had
an opportunity to demonstrate that he “could maintain a stable, drug free lifestyle,” but he
continued to use drugs and “engage in criminal behavior.” Therefore, we find no manifest
error in the youth court’s determination that Kirkley’s absence and lack of communication
7 In Clark, 611 P.2d at 1345, the Court of Appeals of Washington held, “Mere imprisonment of the father is not sufficient of itself for an order of deprivation, but it is not a factor to be ignored.”
19 between him and his son had resulted in a substantial erosion of the parent-child
relationship.
¶37. Accordingly, we find the court did not err in finding “by clear and convincing
evidence” that it was in the child’s best interest to terminate Kirkley’s parental rights.
¶38. AFFIRMED.
CARLTON, P.J., GREENLEE AND LAWRENCE, JJ., CONCUR. WILSON, P.J., AND McDONALD, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY McDONALD AND McCARTY, JJ. McCARTY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY WESTBROOKS AND McDONALD, JJ.
WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:
¶39. I join Judge McCarty’s separate opinion that the summons triggers due process
concerns, while agreeing with the majority that jurisdiction is proper. I write separately to
address the other concerns raised by this case, finding portions of the decision of the youth
court to be manifestly wrong and unsupported by substantial, credible evidence. More
specifically, the guardian ad litem did not conduct a zealous investigation, and the
termination of parental rights was not supported by substantial evidence. Additionally, this
case presents the question—though no one raised it—when does the right to counsel attach
in abuse and neglect proceedings?
A. The right to counsel should attach at the beginning of youth court proceedings.
¶40. This proceeding did not give true deference to the weight and lifelong effects it
would have on this family and families later to come. “The United States Supreme Court has
20 unequivocally recognized that parental rights are a matter of fundamental constitutional
significance.” G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 335 (¶11)
(Miss. 2000) (citing Santosky v. Kramer, 455 U. S, 745 (1982)). “Parents have a liberty
interest, more precious than any property interest, in the care, custody, and management of
their children and families.” Id. “That interest is afforded great protection by the courts.”
Id. “Indeed, the United States Supreme Court has stated that few forms of state action are
so severe and so irreversible as termination of parental rights, leaving a parent with no rights
to visit or communicate with the child.” Id. Although labeled as a civil matter, a TPR
proceeding is comparatively punitive, leaving one to wonder when fundamental
constitutional protections attach to afford the indigent zealous and competent advocacy to
protect the liberty interest in the right to parent.
¶41. “The Sixth Amendment right to counsel is ‘offense’ specific and does not attach until
prosecution begins.” Howell v. State, 163 So. 3d 240, 253 (¶33) (Miss. 2014); Weeks v.
State, 804 So. 2d 980, 995 (¶55) (Miss. 2001) (citing McNeil v. Wisconsin, 501 U.S. 171,
174-77 (1991)). In McNeil, the United States Supreme Court explained, “The purpose of the
Sixth Amendment counsel guarantee—and hence the purpose of invoking it—is to protect
the unaided layman at critical confrontations with his expert adversary, the government, after
the adverse positions of government and defendant have solidified with respect to a
particular alleged crime.” McNeil, 501 U.S. at 177-78. Thus, the Sixth Amendment right
to counsel attaches once the government has initiated charges “with respect to a particular
alleged crime.” Id.
21 ¶42. Arguably, the Sixth Amendment right to counsel should also attach once adjudication
proceedings commence. Youth court adjudication proceedings can have punishments that
follow; therefore indigent defendants should be appointed counsel at the beginning of these
proceedings once the “prosecution begins.” The argument that the Sixth Amendment right
to counsel should not attach to youth court adjudication proceedings because they are civil
in nature cannot withstand attack. Youth court proceedings have vivid similarities to that of
criminal proceedings, such as a defendant and prosecutor, an alleged crime, and the possible
result of punishment. Youth court defendants are facing critical confrontations with an
expert adversary, the government, and should not be left unaided. Parents are often left
unaided until they face the most disastrous punishment of family law—termination of
parental rights. Although adjudicatory hearings do not lead directly to incarceration,
termination of parental rights is still punishment in nature.
¶43. The “appointment of counsel in termination proceedings, while wise, is not
mandatory and therefore should be determined by state courts on a case-by-case basis.”
K.D.G.L.B.P. v. Hinds Cnty. Dep’t of Human Servs., 771 So. 2d 907, 910 (¶12) (Miss. 2000)
(citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 34-35 (1982)). While appointment of
counsel has been determined to not be an absolute right by the United States Supreme Court,
Mississippi courts have gone a step further by creating expansive law granting indigent
persons the right to counsel in termination cases. If the court determines that a parent or
guardian who is a party in an abuse, neglect, or termination of parental rights proceeding is
indigent, the youth court judge may appoint counsel to represent the indigent parent or
22 guardian in the proceeding. E.K. v. Miss. Dep’t of Child Prot. Servs., 249 So. 3d 377, 382
(¶19) (Miss. 2018). The act can be commended, but we must now encourage our courts to
go even further by appointing counsel to the indigent for all adjudication proceedings. One
of the most important factors to be considered in applying the standards for court appointed
counsel is whether the presence of counsel would have made a determinative difference.
K.D.G.L.B.P., 771 So. 2d at 910 (¶12). Being represented by counsel could arguably always
make a determinative difference. The manifest error that occurred in this case arguably could
have been avoided if Kirkley would have been given the aid of counsel at an earlier stage.
B. The investigation by the guardian ad litem was inadequate.
¶44. In addition to the previously mentioned summons Judge McCarty addresses, the
investigation by the guardian ad litem (GAL) raises great concern. The GAL conducted an
investigation that was below standards and did not display zealous advocacy. Our case law
states that guardians ad litem do not have an option to perform or not perform, rather they
have an affirmative duty to zealously represent the child’s best interest. M.J.S.H.S. v.
Yalobusha Cnty. Dep’t of Human Servs., 782 So. 2d 737, 740 (¶14) (Miss. 2001). “[A]
guardian ad litem appointed to investigate and report to the court is obligated to investigate
the allegations before the court, process the information found, report all material
information to the court, and (if requested) make a recommendation.” S.G. v. D.C., 13 So.
3d 269, 282 (¶57) (Miss. 2009). “However, the guardian ad litem should make
recommendations only after providing the court with all material information which weighs
on the issue to be decided by the court, including information which does not support the
23 recommendation.” Id. “The court must be provided all material information the guardian ad
litem reviewed in order to make the recommendation.” Id. In this instance, the GAL
presented the court with information that the court was already privileged to. She simply
appeared in court, documented what occurred, and labeled it as an investigation. This GAL
did not even present documentation to support her recommendation or findings such as a
reporting on the home of the foster parents, documentation attesting to what she claims the
pediatrician reported, or documentation reflecting the drug screening results. The majority
highlights that this GAL submitted a thirteen-page report, but this report is completely
unreasonable for a case that spans over three years. The report should have provided much
more evidence and highlighted a thorough investigation instead of regurgitating a timeline
of courtroom events. She did not take time to interview the birth parents or minor child. The
Supreme Court of Mississippi has previously stated, “It is hard for this Court to imagine that
a guardian ad litem, without ever visiting the children he/she represents, can be fully
informed as to their best interests.” M.J.S.H.S., 782 So. 2d at 741 (¶16). The Mississippi
Supreme Court has overturned cases “[b]ecause guardian ad litem failed to fully represent
the child’s best interest.” Id. For the above mention reasons, I would reverse and remand the
case.
C. There was not clear and convincing evidence to support a TPR.
¶45. The youth court also erred when finding that there was clear and convincing evidence
necessary for terminating Kirkley’s parental rights. Mississippi Code Annotated section 93-
15-115 (Rev. 2015) outlines the guidelines for involuntary termination when a child is in
24 custody or under supervision of the Department of Child Protection Services (CPS), stating:
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.
¶46. Although the minor child was adjudicated neglected and within the care, custody, and
supervision of the CPS, reasonable efforts were not made to diligently assist Kirkley with
complying with the service plan. I am not dismissive of the fact that Kirkley did have a
substance abuse problem and struggled with the service plan, but, we must give credit to the
fact that he did avail himself to many rehabilitation programs while incarcerated. Substance
abuse and addiction are medical problems that do not dissipate simply because a service plan
25 is issued. Although Kirkley initially struggled with his rehabilitation, as many do, he made
considerable efforts to regain sobriety and to be actively engaged in matters concerning his
child by constantly calling and writing the court. The service plan was not amended to
correlate with the restraints of his incarceration that would have allowed for deference to be
given to the programs he completed during his incarceration.
¶47. In addition, the grounds set forth in section 93-15-121 were not established by clear
and convincing evidence. The youth court based its ruling on the following grounds:
(c) The parent is suffering from habitual alcoholism or other drug addiction and has failed to successfully complete alcohol or drug treatment;
(d) The parent is unwilling to provide reasonably necessary food, clothing, shelter, or medical care for the child; reasonably necessary medical care does not include recommended or optional vaccinations against childhood or any other disease;
(e) The parent has failed to exercise reasonable visitation or communication with the child;
(f) The parent's abusive or neglectful conduct has caused, at least in part, an extreme and deep-seated antipathy by the child toward the parent, or some other substantial erosion of the relationship between the parent and the child;
Miss. Code Ann. § 93-15-121 (Rev. 2015).
¶48. Again, Kirkley initially struggled with a drug addiction but there is clear and
convincing evidence that he successfully completed alcohol and drug treatment while
incarcerated. The youth court simply deemed this unsatisfactory because the programs were
not the initial programs of service agreement, but made no efforts to accommodate the
situation at hand by amending the plan to reflect programs available to Kirkley. Youth courts
are known to modify service plans for individuals that relocate; Kirkley simply relocated to
26 a detention facility and should not have been treated differently due to his location.
¶49. The statute is also very clear that the parent must be unwilling to provide necessary
food, clothing, shelter, or medical care for the child. There is an even clearer distinction
between one’s unwillingness and inability. Kirkley was unable to provide for his son while
incarcerated; but despite this, he constantly wrote the court seeking information about the
foster parents to provide assistance to his son. Unfortunately, neither the court nor CPS
responded to his letters.
¶50. Kirkley was also unable to visit or communicate with the minor child. CPS does not
take children to visit parents that are incarcerated; nor were caretakers of the minor willing
to call or Skype Kirkley so that the two would be able to visit. The child’s age was not a
hindrance in facilitating a telephonic visitation because the GAL reported that the three-year-
old child was smart and verbal with an ability to count to twenty and recite the alphabet and
colors. CPS informed Kirkley that he could arrange visitation through the youth court. He
was unsuccessful because he did not receive a response when he contacted the youth court.
¶51. There was no deep-seated antipathy between the child and father—only an erosion
of the relationship furthered by personnel that handled this case who blocked all efforts of
communication and visitation due to Kirkley’s incarceration that was near an end. Due to
the child’s early age, the relationship could have easily been rekindled.
¶52. Simply put, the court became impatient and unsatisfied with Kirkley’s progress and
rushed this TPR proceeding along, finding the foster parents to be more fitting because they
had the opportunity to develop a relationship with the child. The Mississippi Supreme Court
27 has never allowed the termination of parental rights only because others may be better
parents. M.L.B. v. S.L.J., 806 So. 2d 1023, 1029 (¶11) (Miss. 2000).
¶53. For these reasons, I respectfully concur in part and dissent in part.
McDONALD AND McCARTY, JJ., JOIN THIS OPINION IN PART.
McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:
¶54. The Jackson County Youth Court summons violates state law on its face, and those
violations trigger serious due process implications for parents. We should not hold that this
error-filled document “substantially complies” with anything—not the statute, which is
plainly deviates from, or our precedent, which it ignores.
¶55. This point is important because it goes beyond Kirkley’s interest in this case. “The
liberty interest at issue in this case—the interest of parents in the care, custody, and control
of their children—is perhaps the oldest of the fundamental liberty interests recognized by
this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). And “[i]n Mississippi . . . there
exists a strong presumption in favor of preserving parental rights.” In re A.M.A., 986 So.
2d 999, 1009 (¶22) (Miss. Ct. App. 2007). So we need to be accurate at every phase of the
termination of parental rights process in order to safeguard the liberty interest parents have
in their children.
¶56. In accord with this settled law, the Legislature has decided parents in Youth Court
proceedings have a right to counsel. Miss. Code Ann. § 43-21-201 (Rev. 2015). The
Supreme Court has strongly enforced this due process requirement and reversed when it was
not honored. See In re I.G., 467 So. 2d 920, 923 (Miss. 1985); E.K. v. Miss. Dep’t of Child
28 Prot. Servs., 249 So. 3d 377, 383 (Miss. 2018).
¶57. To safeguard that liberty interest, the Legislature put together a form to use when
summoning a parent. It covers all the bases, and in relevant part states:
You have a right to be represented by an attorney. You are requested to immediately notify the youth court of the name of your attorney. If indigent, the above-named child has a right to have an attorney appointed for [them] free of charge, and should immediately apply to the youth court for such appointed counsel. You have a right to subpoena witnesses in your behalf.
Miss. Code Ann. § 43-21-503 (Rev. 2015).
¶58. Jackson County uses exactly none of the statute’s form language. Instead of this plain
and unambiguous language, Jackson County only issues the following notice:
IMPORTANT NOTICE: [PARENTS] YOU MUST BE REPRESENTED BY AN ATTORNEY IN THIS CASE UNLESS THE RIGHT TO LEGAL REPRESENTATION IS WAIVED.
¶59. To fulfill the law, a reasonable party would simply use the form provided by the
Legislature. The summons Jackson County used wholly disregards the language of the
statute and does not come close to the requirement that it “substantially comply,” which it
is bound to do by law by the Legislature’s usage of the word “shall.” See E.K., 249 So. 3d
at 383 (¶21) (holding that the word “may” is discretionary and that “shall” is mandatory).
The summons plainly and obviously does not follow the guidance of section 43-21-503.
¶60. Ultimately, this improper summons did not harm the appellant in this case, as he was
later appointed counsel. I agree that it may not have impacted the father here or require
reversal in this appeal. Nonetheless, the violations of due process contained in this
summons will foreseeably have an impact on others in the future—and in this most sensitive
29 kind of all proceedings.
¶61. I agree with the rest of the majority’s conclusions. However, because the summons
used by the Jackson County Youth Court not only fails to “substantially comply” with the
statute but also materially deviates from it, I respectfully dissent in part.
WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION IN PART.