Chism v. Chism Bright
| Docket Number: | 2011-CA-01472-COA Linked Case(s): 2011-CT-01472-SCT ; 2011-CA-01472-COA ; 2011-CT-01472-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-21-2013 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Termination of parental rights - Section 93-15-103(3)(e)(i) - Best interest of child - Clear and convincing evidence Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Maxwell and Fair, JJ. Non Participating Judge(s): Roberts, J. Dissenting Author : Irving, P.J., and James, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 09-08-2011 Appealed from: Union County Chancery Court Judge: Michael Malski Disposition: TERMINATED APPELLANT’S PARENTAL RIGHTS Case Number: 2006-0549-73-MM |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Jimmy Ray Chism, Jr. |
JAK MCGEE SMITH
GREGORY M. HUNSUCKER |
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| Appellee: | Abby Gale Morris Chism Bright | J. MARK SHELTON JANA L. DAWSON | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Termination of parental rights - Section 93-15-103(3)(e)(i) - Best interest of child - Clear and convincing evidence |
| Summary of the Facts: | Jimmy Chism Jr. and Abby Chism Bright had one child, Johnny, during their marriage. Under their divorce decree, Jim and Abby shared joint legal custody of Johnny, with Abby receiving primary physical custody and Jim receiving liberal visitation. Not only after the divorce, Abby filed an emergency petition for modification of custody. The chancellor entered an order modifying visitation, requiring Jim’s mother, Terri Chism, to supervise Jim’s visitation with Johnny. Jim later filed a complaint for contempt, seeking to restore unsupervised visitation with Johnny and to require Abby to execute a quitclaim deed on the martial home the chancellor awarded him as part of the initial divorce decree. Abby filed a counter-complaint seeking termination of Jim’s parental rights, alleging a substantial erosion of the relationship between Johnny and Jim caused by Jim’s serious neglect of and lack of concern for Johnny. The chancellor entered a judgment terminating Jim’s parental rights and awarding grandparent visitation to Jim’s parents. Jim appeals. |
| Summary of Opinion Analysis: | Jim argues that the chancellor erred in terminating his parental rights, because Abby failed to provide clear and convincing evidence showing that he exhibited ongoing behavior that would make it impossible to return Johnny to Jim’s care and custody. Any one factor listed in section 93-15-103(3) can justify the termination of parental rights. Even where the ground for termination is proven by clear and convincing evidence, the chancellor must still consider whether termination is in the best interests of the child. Here, the chancellor cited section 93-15-103(3)(e)(i) as the basis for his decision to terminate Jim’s parental rights. Section 93-15-103(3)(e)(i) allows for the termination of parental rights if “(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent's care and custody: (i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally[] acceptable care of the child[.]” The chancellor stated that “[a] review of Jim’s history shows a troubling pattern of substance abuse increasing in intensity, risk[,] and severity of consequences.” During the hearing, Jim admitted to consuming alcohol frequently during the period September 2008 and on July 15, 2009, and he acknowledged that he has suffered from an alcohol addiction since 2005. Jim also admitted to several criminal charges, but he testified that Johnny was not present for any encounter with law enforcement other than on July 5, 2008. Jim admitted to testing positive for marijuana after a urine test in May 2010. Jim also testified that he used cocaine and marijuana in February, March, and April 2010, during the course of the present litigation. He further admitted to using drugs and alcohol again in November 2010, and he acknowledged an incident where he broke into his next-door neighbor’s home. Jim was arrested as a result of the incident, and remained incarcerated during the hearing. The chancellor also heard testimony from Dr. Fleming, whom the chancellor described in his order as “a licensed neuropsychologist whose practice includes patients in need of substance abuse treatment.” Dr. Fleming met with Jim and performed tests during April and May 2011, after which he diagnosed Jim as bipolar, primarily depressive rather than manic. The chancellor noted that “chronic chemical abuse” was the possible primary cause of Jim’s bipolar disorder. Dr. Fleming testified that Jim’s parents likely enabled Jim’s condition. The testimony of the parties and witnesses, as well as the GAL’s report and recommendation, supports the chancellor’s finding that Abby proved at least one of the grounds enumerated in section 93-15-103(3) by clear and convincing evidence. The record contains credible proof sufficient to support the chancellor’s decision. |
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