Smith v. Coahoma County Department of Human Services

149 So. 3d 560, 2014 Miss. App. LEXIS 596, 2014 WL 5333637
CourtCourt of Appeals of Mississippi
DecidedOctober 21, 2014
DocketNo. 2013-CA-00979-COA
StatusPublished

This text of 149 So. 3d 560 (Smith v. Coahoma County Department of Human Services) 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
Smith v. Coahoma County Department of Human Services, 149 So. 3d 560, 2014 Miss. App. LEXIS 596, 2014 WL 5333637 (Mich. Ct. App. 2014).

Opinion

FAIR, J.,

for the Court:

¶ 1. This case began with allegations of a boy sexually abusing his younger brother. The mother, Sharon Smith,1 appeals the Coahoma County Youth Court’s judgment granting legal and physical custody of her son to his great aunt. Sharon claims the judge erred in adjudicating Joey a neglected child and ignored medical evidence and testimony in support of reunification. She further claims Joey’s guardian ad litem (GAL) acted adversely to Joey’s best interest. We find the evidence was sufficient to support the youth court’s determination and therefore affirm.

FACTS

¶ 2. In March 2012, the Department of Human Services (DHS) received a call from one of Joey’s family members stating that Joey, four years old, was being sexually abused by his eleven-year-old brother. DHS created an initial safety plan (ISP) on March 22, 2012. As part of the ISP, Joey and his brother were not allowed to be [562]*562alone unsupervised. Joey was not allowed to stay at home overnight. In addition, the family agreed to go to counseling. The ISP was set to remain in effect until it was confirmed that there were no risk factors regarding Joey’s safety in - the home.

¶ 3. On April 23, 2012, DHS received a phone call from Joey’s doctor at the local children’s clinic. The doctor stated that Joey’s family called her claiming Joey was being sexually abused. DHS spoke with Joey’s grandmother, who stated that the incident occurred on April 19, 2012. She also stated that Sharon had violated the ISP by keeping Joey overnight. DHS filed an emergency custody order with the Coahoma County Youth Court. The court granted the order, awarding DHS physical and legal custody of Joey. On April 27, 2012, the court held a shelter hearing and ordered Joey to remain in DHS custody. Joey was placed with his great-aunt, Mary Jo. DHS maintained custody, and Mary Jo’s home served as the resource home.

¶ 4. On May 9, 2012, DHS filed a petition to adjudicate Joey as a sexually abused child. The court held an adjudication/disposition hearing eight days later. The court appointed Joey a GAL and an attorney, pursuant to Mississippi Code Annotated sections 43-21-121(1) and 43-21-201(1) (Rev. 2009). The only medical report prior to the adjudication hearing was made on May 10, 2012. Several family members testified at the hearing. Two of Joey’s aunts testified that Joey had stated that his brother “sucked his wee-wee.” Joey’s grandmother testified that Joey previously made similar comments to her about sexual activity with his brother. The hearing was continued pending testimony from Joey’s sister and a forensic report.

¶ 5. Several weeks later, the court heard testimony from Joey’s older sister. She testified that she saw her brother performing oral sex on Joey. She also stated that Joey’s mother was aware of the sexual abuse.2 DHS Family Protection Specialist Shimeka Jackson testified regarding the medical report from May 10, 2012, and a forensic-interview report from May 21, 2012. In the report from May 10, the forensic nurse stated she found no evidence of injuries to Joey. The nurse also stated that another report had been generated one year ago, but that the safety plan included in that report was not followed. The May 21 report was a forensic interview conducted in Oxford, Mississippi; the findings neither confirmed nor rejected the possibility of sexual abuse. DHS recommended Joey remain in its custody. The court adjudicated Joey a neglected child. The disposition order kept Joey in DHS custody and stated that reasonable efforts should be made towards reunification.

¶ 6. On September 20, 2012, one of Joey’s aunts filed a motion to intervene and transfer the case to chancery court. The court heard the motion on November 29, 2012. At the hearing, the aunt’s attorney stated that her client filed a petition for custody in chancery court and needed access to DHS records. The court later denied the aunt’s motion to intervene and transfer, along with the aunt’s request to access DHS records.

¶ 7. The court held a permanency hearing on March 7, 2013. The court reviewed the two reports from May 2012, in addition to several new reports. The court reviewed a medical report from August 26, [563]*5632012, that could neither confirm nor negate evidence of sexual abuse. On June 12, 2012, Katheryn Teague of the DeSoto Family Counseling Center conducted intake on Joey. Teague stated in her report that Sharon confirmed Joey’s brother had been exposed to pornography. She attributed the older brother’s early exposure to pornography as the cause of any alleged sexual offending behavior. Teague further stated that successful completion of an offender-specific program would lower the risk of future harm to Joey, and that the court should order Joey’s brother to complete an offender-specific program designed for children.

¶ 8. Teague met with Joey at least three more times, most recently a few days before the permanency hearing. Teague provided the court with a treatment summary, stating that Joey exhibited signs of a child who was not nurtured by a primary caregiver. During one of the therapy sessions, Joey told Teague that his brother “sucked my penis” five times. In her final recommendation, Teague stated that “the evaluation of the brother’s psy-chosexual [should] be taken into consideration in regard to his risk to re-offend before making a decision about reunification of the family.” She further stated that, “[i]f the brother is determined to be at risk for offending behavior, the therapist would not recommend placing [Joey] in the home unless the brother was first removed from the home.”

¶ 9. The DHS area social work supervisor recommended that Joey live with his mother for a ninety-day trial placement, based on the fact there was no documented proof of sexual abuse. Joey’s attorney agreed with DHS’s recommendation. The GAL, however, recommended that Joey remain in DHS custody, with continued visitation between Joey and Sharon. In its permanency order, the court detailed the failed efforts of DHS’s permanency plan for reunification. Sharon failed to complete several ISPs. In addition, the court referred to the court summary from the adjudication hearing, where DHS agreed that Joey would not be returned home until a therapist could confirm no risk factors were present. Finding no such confirmation in the record, the court awarded full legal and physical custody of Joey to Mary Jo. The court stated that it would retain jurisdiction for any further actions regarding Joey and released DHS from any monitoring responsibilities.. Sharon appealed.

DISCUSSION

¶ 10. Sharon’s parental rights were not terminated in this action. Therefore, we are directed to apply a reasonableness review, not the elevated review required when a parent’s rights are terminated. See In re C.R., 604 So.2d 1079, 1083 (Miss.1992). Our standard of review in youth court actions is limited:

The trier of fact at a Youth Court hearing is the Youth Court judge. When reviewing the evidence, we do not proceed de novo. Rather, when the Youth Court makes an adjudication of neglect, this Court considers all the evidence considered by the Youth Court in the light most favorable to the State. If the evidence so considered is opposed to the finding of the Youth Court with such force that reasonable men could not have found as the Youth Court did by a preponderance of the evidence, this Court must reverse.

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Bluebook (online)
149 So. 3d 560, 2014 Miss. App. LEXIS 596, 2014 WL 5333637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-coahoma-county-department-of-human-services-missctapp-2014.