In re Dissolution of Marriage of Leverock v. Leverock
| Docket Number: | 2008-CA-00093-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 12-03-2009 Opinion Author: Lamar, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Termination of parental rights - Section 93-15-103(1) - Best interest of child - Presumption in favor of natural parent - Section 93-13-1 - Section 93-5-24 - Admissions - M.R.C.P. 36(b) Judge(s) Concurring: Waller, C.J., Graves, P.J., Dickinson, Randolph and Chandler, JJ. Concur in Part, Dissent in Part 1: Kitchens, J. with separate written opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 11-09-2007 Appealed from: Lamar County Chancery Court Judge: James H.C. Thomas, Jr. Disposition: The chancellor adopted the recommendations of the GAL and returned custody of the minor child to his biological father. Case Number: 2006-0026-GN-TH |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | IN THE MATTER OF THE DISSOLUTION OF
THE MARRIAGE OF JAMES LEVEROCK AND
DEANNA HAMBY: BRENT KEITH PENDLETON
AND KIM RENEE PENDLETON |
RENEE M. PORTER |
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| Appellee: | JAMES ANTHONY LEVEROCK | BRANDON L. BROOKS, SHIRLEE FAGER-BALDWIN | ||
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(1) - Best interest of child - Presumption in favor of natural parent - Section 93-13-1 - Section 93-5-24 - Admissions - M.R.C.P. 36(b) |
| Summary of the Facts: | Zachary Leverock was born to Deanna Hamby and Tony Leverock. Upon the couple’s separation, Deanna and Zach moved in with her foster parents, the Pendletons. For the following two and a half years, Zach lived with the Pendletons with no contact from Tony. Deanna died in a car accident, and at her funeral, Tony told the Pendletons that he eventually wanted to take Zach back to Florida with him. The Pendletons filed a complaint for emergency temporary custody, termination of parental rights, and for custody. A trial was held, and Tony received custody of Zach. The Pendletons appeal. |
| Summary of Opinion Analysis: | Under section 93-15-103(1), the following three prerequisites must exist before a chancellor can terminate parental rights: the child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child; relatives are not appropriate or are unavailable; and adoption is in the best interest of the child. Because Zach was never removed from the home of his natural parents, the trial court examined whether Tony was unable or unwilling to care for his child. The chancellor focused on the period of time following Deanna’s death and found that Tony’s actions had demonstrated that he was willing to care for Zach. The record shows that at Deanna’s funeral, Tony expressed an interest in forging a relationship with his son, and when ordered by the chancellor, began regularly visiting Zach and paying child support. As noted in the GAL’s opinion, Tony did everything the chancellor and the Pendletons asked of him in order to prove his dedication to reuniting his family. This is credible evidence to support the trial court’s determination that the first condition of section 93-15-103(1) was not met. Furthermore, the Pendletons failed to present any evidence as to the second condition or even to request adoption, much less prove that adoption was in Zach’s best interest. Thus, the chancellor did not commit manifest error in refusing to terminate Tony’s parental rights. In Mississippi, it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party, and this presumption is echoed in section 93-13-1. However, this presumption or preference for a natural parent may be rebutted. These sentiments are reflected in section 93-5-24. A person acting in loco parentis is one who has assumed the status and obligations of a parent without a formal adoption. The record shows that the Pendletons took Zachary into their home and provided parental supervision and support as though he were their own child and as such, they are said to have acted in loco parentis. In evaluating custody the chancellor failed to address Tony’s complete and total absence of any contact or support for two and a half years of three-year-old Zach’s young life. The undisputed record reveals that for approximately two and a half years, Tony had no contact with Zach. He failed to see, talk with, or otherwise visit his son. Further, Tony provided no financial support during this time, nor did he send any birthday or Christmas cards or gifts to Zach. While Tony maintained that he was unable to contact Deanna and Zach, Tony’s mother and sister testified that they were in continuous contact with the Pendletons, Deanna, and Zach. Tony’s mother also testified that she had encouraged Tony to be more involved with his child but that he had refused. As a matter of law, Tony’s actions (or lack thereof) during the two and a half years before Deanna’s death constitute desertion. A finding that there was desertion however, does not end the inquiry. In a custody case involving a natural parent and third party, the court must first determine whether through abandonment, desertion, or other acts demonstrating unfitness to raise a child, as shown by clear and convincing evidence, the natural parent has relinquished his right to claim the benefit of the natural-parent presumption. If the court finds one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis. At the age of four, Zach was taken from the only home he had known since he was seven months old, a home the chancellor described as a “safe and secure environment,” and it was done without a finding that this change was in his best interests. The case is thus remanded for the trial court to proceed with a best interests analysis. The Pendletons argue that the chancery court erred by denying their motion to deem their requests for admission admitted by Tony, as he was more than sixty-four days late in responding. It was unnecessary for the Pendletons to petition the chancellor to deem the requests for admission admitted. Consequently, the chancellor was in error for denying the request as being untimely filed. A judge does not have the discretion under M.R.C.P. 36(b) to deem the matter admitted, because a request is conclusively established upon a party’s failure to answer within thirty days, or such time as the judge has determined appropriate. The trial court, may, however, permit withdrawal or amendment of the admission. In light of the fact that the case is remanded on the custody issue, Tony has the opportunity to file a motion for amendment or withdrawal as set forth in Rule 36, and the Pendletons have an opportunity to respond to any such motion. |
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