Loomis v. Bugg

872 So. 2d 694, 2004 Miss. App. LEXIS 376, 2004 WL 885759
CourtCourt of Appeals of Mississippi
DecidedApril 27, 2004
DocketNo. 2003-CA-00116-COA
StatusPublished
Cited by7 cases

This text of 872 So. 2d 694 (Loomis v. Bugg) 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
Loomis v. Bugg, 872 So. 2d 694, 2004 Miss. App. LEXIS 376, 2004 WL 885759 (Mich. Ct. App. 2004).

Opinion

McMILLIN, C.J.,

for the Court.

¶ 1. This is a custody case concerning a young child whose father is deceased. The chancellor found that the child’s mother was unfit to have primary custody of the child and, instead, awarded custody to the child’s paternal aunt. In addition to the natural mother’s efforts to have custody of the child, the child’s maternal grandmother also appeared in the action asking that, if the mother’s request for custody was denied, then custody be awarded to her as the next closest living kin. Both the mother and maternal grandmother have appealed the decision of the chancellor. Upon reaching the conclusion that the chancellor’s decision is within the discretionary authority afforded him in such matters, we affirm.

I.

Facts

¶ 2. The child in this case, Hayden Bradley Smith, was born on December 31,1998, to Michelle Loomis and Jason Smith. At the time of the custody hearing in the proceeding, the mother, Ms. Loomis, was twenty-three years of age, and the father was deceased.

¶ 3. The proceeding was commenced jointly by one of the child’s paternal grandmothers and the deceased father’s sister (and, thus, the child’s aunt, Angela Bugg). The complaint sought a judgment making an award of custody of the child to Mrs. Bugg. Parties to the proceeding besides those already named included the child’s maternal grandmother, Terri For-rester. Mrs. Forrester’s husband was a party to the proceeding at the trial level, but he has not appeared before this Court as a party to the appeal.

¶ 4. The proceeding was commenced by the previously-identified relatives of the deceased father seeking an award of custody of the child based on the contention that the natural mother, Ms. 'Loomis, was an unfit person to have' custody and that the best interest of the child would be served by awarding custody to Mrs. Bugg. Mrs. Forrester entered an appearance to assert a claim that if custody were not awarded to Ms. Loomis, then the next best alternative for the child would be that custody be awarded to her and her husband.

¶ 5. Evidence was presented that showed that Ms. Loomis had experienced a rather unstable lifestyle since the death of Mr. Smith. She had moved repeatedly, been involved in the use of illegal narcotics including marijuana and crystal metham-phetámine, and had entered into multiple relationships with men to whom she was not married, including an extramarital relationship with a married man. Her employment history was similarly unstable, and there was evidence that she haphazardly left the child in the care of various relatives from time to time. No witnesses were presented who offered the view that Ms.' Loomis was an appropriate person to have the primary custodial care of the [696]*696child. Rather, the thrust of the evidentia-ry hearing appeared to be in the nature of a contest for custody between relatives of the deceased father and relatives of the mother, Ms. Loomis.

¶ 6. At the conclusion of the hearing, the chancellor found that it had been shown by clear and convincing evidence that Ms. Loomis, in her present situation, was not a fit parent to have primary custody of the child. The chancellor then analyzed the various' competing considerations in making an appropriate custody determination that would advance the best interest of the child, using the factors commonly known in the jurisprudence of-this State as the “Al-bright factors” and concluded that an award of custody to Mrs. Bugg was appropriate. The court ordered visitation rights both to Ms. Loomis and to both grandmothers. Ms. Loomis’s visitation rights were restricted to the extent that they had to be exercised at a time when her mother, Mrs. Forrester, was present to supervise the visitation.

¶ 7. Both Ms. Loomis and Mrs. Forres-ter had appealed from that .determination by the chancellor. The appeal presents four issues for consideration. They are (a) whether the chancellor erred in finding Ms. Loomis to be unfit to have custody of her child; (b) whether it was reversible error for the „ chancellor to refuse to appoint a guardian ad litem for the child; (c) whether the award of custody to Ms. Bugg was an abuse of discretion; and (d) whether the chancellor committed an abusé of discretion in his applying the Albright factors.

¶ 8. For reasons we will proceed to set out, we find no error and affirm the chancellor.

II.

Denial of Custody to the Natural Mother

¶ 9. There exists in the law a presumption that the natural parents are the best caregivers for their children and, therefore, ought to have primary custody. Westbrook v. Oglesbee, 606 So.2d 1142, 1144-45 (Miss.1992). The chancellor may remove a child from the custody of a natural parent upon reaching the conclusion that'the custodial parent is unfit to perform the role of parent. Id. The proof demonstrating this unfitness must be greater than a mere preponderance and, rather, must rise to the level of being clear and convincing. Miss.Code Ann. § 93-15-109 (Supp.2003); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); S.N.C. v. J.R.D., Jr., 755 So.2d 1077, 1081(¶11) (Miss.2000). Nevertheless, the chancellor, sitting as finder of fact and hearing the evidence first hand, is best positioned to make critical determinations of witness credibility and to decide what weight and worth to afford any particular part of the proof. Polk v. Polk, 559 So.2d 1048, 1049 (Miss.1990). Those findings and conclusions are entitled to deference on appeal, and we may reverse only if we find that the chancellor was manifestly wrong or applied an incorrect legal standard. E.g., Sellers v. Sellers, 638 So.2d 481, 483 (Miss.1994).

¶ 10. In this case, there was ample evidence presented to show that this child’s mother had led an unstable life, including use of illegal narcotics, for an extended period of time and that her attention to the welfare of her child appeared to be of secondary interest to her. Rather, she was content to leave the day-to-day care of the child to relatives for over half the time since the death of the child’s father. In that situation, and without any compelling evidence to the contrary, we are unconvinced that the chancellor either ' (a) applied an improperly lower standard of proof or (b) was manifestly erroneous in assessing the weight [697]*697and worth of the evidence such that his decision to award custody to Mrs. Bugg would constitute an abuse of discretion. In that situation, we can find no reason to disturb the chancellor’s determination.

III.

Failure to Appoint a Guardian ad Litem

¶ 11. There were no accusations of abuse or neglect of the child insofar as the evidence went to the care the child was receiving when in the control of family members other than the natural mother. There were no allegations that the physical arrangements offered for the care of the child by any of the competing family members was somehow inadequate or even questionable. Thus, there did not appear to be a need for the sort of neutral investigatory work that is typically performed by a guardian ad litem in a disputed custody proceeding.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

J.A.G. v. C.T.
249 So. 3d 409 (Court of Appeals of Mississippi, 2017)
Jennifer Carter v. Josh Carter
204 So. 3d 803 (Court of Appeals of Mississippi, 2015)
Vaughn v. Davis
36 So. 3d 1261 (Mississippi Supreme Court, 2010)
William Daniel Vaughn v. Connie Lynn Davis
Mississippi Supreme Court, 2007

Cite This Page — Counsel Stack

Bluebook (online)
872 So. 2d 694, 2004 Miss. App. LEXIS 376, 2004 WL 885759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loomis-v-bugg-missctapp-2004.