In Re: A.M.A., a Minor
| Docket Number: | 2005-CA-01845-COA Linked Case(s): 2005-CA-01845-COA ; 2005-CT-01845-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-11-2007 Opinion Author: Barnes, J. Holding: The appeal from the Forrest County Youth Court is dismissed for lack of jurisdiction. |
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| Additional Case Information: |
Topic: Termination of parental rights - Jurisdiction - M.R.C.P. 77(d) - M.R.A.P. 4 - M.R.C.P. 60(b) - Section 93-15-103(1) - Section 93-15-103(3)(h) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ. Concur in Part, Concur in Result 1: Roberts, J. Concurs in Result Only: IRVING, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 01-20-2005 Appealed from: Forrest County Youth Court Judge: Michael McPhail Disposition: PARENTAL RIGHTS OF NATURAL MOTHER AND FATHER TERMINATED. Case Number: 18-YC-04-P-0305-058 |
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| Consolidated: CONSOLIDATED WITH NO. 2005-CA-01846-COA; IN RE: T.A., A MINOR; LC Case #: 18-YC-04-P-0305-059; Ruling Date: 01/20/2005; Ruling Judge: Michael McPhail. | ||
| Party Name: | Attorney Name: | |||
| Appellant: | IN RE: A.M.A., A MINOR |
LEONARD BROWN MELVIN |
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| Appellee: | Unknown | OFFICE OF THE ATTORNEY GENERAL BY: MYRICK L. JACKSON |
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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 - Jurisdiction - M.R.C.P. 77(d) - M.R.A.P. 4 - M.R.C.P. 60(b) - Section 93-15-103(1) - Section 93-15-103(3)(h) |
| Summary of the Facts: | Paul, the natural father of T.A. and A.M.A., resided in the home with the children and their natural mother, D.A., until he was incarcerated pursuant to a charge of attempted robbery. Following his release on probation, Paul resumed residence with the children and their mother. This period included approximately one month when the mother was incarcerated and Paul was the children’s primary care-giver. After the mother was released, Paul moved out because of tension between the couple that he feared might lead to revocation of his probation. Paul continued to pursue a relationship with the children by providing financial support and visiting with the children. After one of the children suffered an injury and Paul attempted to have her treated for it even though D.A. refused to cooperate, the Forrest County Department of Human Services petitioned the Youth Court of Forrest County for temporary custody of the two children, which was granted. Paul continued to visit and provide support for the children. FCDHS petitioned the youth court to declare that both children were neglected within the meaning of section 43-21-105. The youth court judge informed Paul that if circumstances did not change, his parental rights would be terminated. Based in part on the child’s injured arm and the lack of medical attention she received, and in part on the deplorable living conditions at D.A.’s residence, the youth court granted these petitions. As part of the court’s adjudication, a permanency plan of reunification with the natural parents was ordered, and both D.A. and Paul were ordered to enter into a service agreement with FCDHS to make reunification possible. Paul was unable to complete the terms of his service agreement because his probation was revoked. D.A. also failed to abide by the terms of her service agreement. The youth court determined that no further efforts should be made to reunify the children with their parents and that a new permanency plan of TPR/adoption would be in the children’s best interests. FCDHS filed a “Petition to Terminate Parental Rights.” A judgment was entered terminating the parental rights of both parents. Paul appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurisdiction Judgment was entered on May 19, 2005, but Paul’s notice of appeal was not filed until September 9, 2005, some 113 days later. Pursuant to M.R.C.P. 77(d), the youth court was powerless to grant Paul additional time to file his appeal absent any Mississippi Rules of Appellate Procedure provision authorizing the youth court to grant an extension or to allow an out-of-time appeal. M.R.A.P. 4(a) requires that a party’s notice of appeal be filed with the clerk of the trial court within thirty days of entry of the order or judgment from which appeal is taken. M.R.A.P. 4(d) makes the time for appeal begin to run upon the trial court’s entry of an order disposing of certain post-trial motions, including motions made pursuant to M.R.C.P. 59 and 60. In order for the time for appeal to be tolled pursuant to this provision, however, the post-trial motion must be filed within ten days of the entry of the judgment or order from which appeal is taken. Paul’s post-trial motion was made some forty-two days after entry of the May 19 judgment; so Rule 4(d) did not operate to toll the beginning of the thirty-day time limitation prescribed by Rule 4(a). M.R.A.P. 4(g) allows for an extension of time to file a notice of appeal by motion filed before or after the expiration of the thirty-day time period prescribed by subsection (a). The practical effect of Rule 4(g) is that a party has a maximum of sixty days from the date the judgment or order appealed from is entered, or ten days from the date the order granting the motion for extension of time is entered, in which to file a notice of appeal. In the instant case, Paul’s notice of appeal was filed approximately 113 days after the May 19, 2005, judgment was entered, well outside the sixty-day window. Even if Paul’s failure to learn independently of the May 19 judgment in time to file his notice of appeal within thirty days constitutes “excusable neglect,” Paul’s notice of appeal would still be untimely because it was filed beyond the maximum additional time allowed by Rule 4(g). M.R.A.P. 4(h) was added to provide for reopening of time for appeal in the event that a notice of entry of judgment is not received. The record does not reflect the date upon which Paul received notice that judgment was entered on May 19. Regardless, Paul’s notice of appeal was filed more than fourteen days after the August 11, 2005, entry of the relevant order allowing him additional time to file his notice of appeal. Accordingly, the notice was not timely filed pursuant to Rule 4(h). While a trial judge has broad authority pursuant to M.R.C.P. 60(b) to grant relief from the judgment, this rule does not authorize a trial judge to extend, toll, reopen, or otherwise grant an appellant additional time in which to file a notice of appeal. In fact, it is only by virtue of M.R.A.P. 4(d) that Rule 60(b) affects the time for filing a notice of appeal. In addition, since this case is civil rather than criminal in nature, the Court is without authority to suspend Rule 4. Issue 2: Termination of parental rights Paul argues that, but for his incarceration, his conduct would not satisfy any of the statutory bases for termination. The youth court judge, having found the threshold requirements of section 93-15-103(1) to be satisfied, based his judgment terminating the parental rights of Paul on the following factual conclusions: Paul did not have contact with the children for more than one year; the children had been in the care and custody of DHS for more than one year, and Paul failed to exercise reasonable visitation and failed to implement a plan to allow DHS to return the children to him; Paul failed to eliminate ongoing behavior which prevented placement of the children with him; there was a substantial erosion of the relationship between Paul and the children; and both children had been adjudicated neglected, custody was transferred from their parents for placement pursuant to section 43-15-13, and a court of competent jurisdiction determined that reunification would not to be in the best interests of the children. Imprisonment of a parent is not sufficient reason per se to terminate parental rights. All indications are that, had Paul not been incarcerated, he would have continued the care and support that he exhibited prior to incarceration. During his incarceration, the children were placed with foster parents who were not required to ensure Paul’s continued contact with his children. Furthermore, without someone to bring the children to the jail for visitation, it would have been impossible for Paul, while he was incarcerated, to comply with the terms of the service agreement which required him to maintain regular visitation with the children. There is no reference in the record to the “ongoing behavior” that Paul failed to eliminate. The record contains insufficient evidence that the relationship between Paul and his children had “substantially eroded.” However, the children were adjudicated neglected prior to the TPR judgment, their custody had been transferred from their parents, and a court of competent jurisdiction had determined that reunification was not in the best interest of the children. This is sufficient to support the termination of parental rights under section 93-15-103(3)(h). |
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