K.D.G. v. Winston County Dep't of Human Serv.
| Docket Number: | 2010-CA-00231-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-02-2011 Opinion Author: Maxwell, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Termination of parental rights - Section 93-15-103(3)(b) & (f)- Evidence of no contact - Substantial erosion of parent/child relationship Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts, Carlton and Russell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 12-04-2009 Appealed from: WINSTON COUNTY CHANCERY COURT Judge: J. Max Kilpatrick Disposition: TERMINATED FATHER’S PARENTAL RIGHTS Case Number: 2009-0092 |
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| Party Name: | Attorney Name: | |||
| Appellant: | In the Interest of Minors K.D.G., II and R.C.G.: K.D.G. |
DAVID E. BANE JR. |
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| Appellee: | Winston County Department of Human Services, by Barbara Proctor, Social Services Director, and K.D.G., II and R.C.G., Minors, by and through their Next Friend, Barbara Proctor | OFFICE OF THE ATTORNEY GENERAL: KATHERINE JANE CALDWELL |
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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 - Section 93-15-103(3)(b) & (f)- Evidence of no contact - Substantial erosion of parent/child relationship |
| Summary of the Facts: | For over six years, KDG’s two minor sons had been in the custody of the Winston County Department of Human Services, while KDG had been in and out of prison. After KDG failed in 2008 to comply with a plan to reunite him with his sons and did not visit them for over a year, DHS petitioned for termination of his parental rights. The court granted termination on two statutory grounds— KDG’s failure to contact his sons for over a year and the substantial erosion of the relationship between KDG and his sons. KDG appeals. |
| Summary of Opinion Analysis: | The chancery court found termination grounds existed based on two factors in section 93-15-103(3). KDG argues the chancery court erred in finding section 93-15-103(3)(b) applied. Because both children were over the age of three, DHS had to show by clear and convincing evidence KDG made no contact with his sons for over a year. KDG argues, because he saw RCG in July 2008 and called DHS in December 2008, this evidence defeats a clear and convincing finding of no contact. The only evidence of contact was KDG’s testimony that he called DHS in December 2008 and asked if it were possible to talk to his sons on the phone. Because of both sons’ mental states and KDG II’s placement at a treatment facility, DHS told KDG he could not just call his sons. To communicate with them he would have to schedule a visit. That was the entire point of the permanency order—for KDG to coordinate scheduled visits through DHS in order to be introduced back into his sons’ lives. Yet KDG neither entered into a service agreement with DHS nor scheduled visitation with either son. Thus, the court did not err. Although KDG was in prison for six months prior to the termination hearing, his failure to contact his children was not solely attributable to his May 2009 incarceration. There is no history of KDG’s care and support of his minor children prior to his returning to prison. KDG also argues there was no evidence to support the application of section 93-15-103(3)(f) because there was no testimony of antipathy by his sons toward him or erosion of his relationship with his sons. A finding of substantial erosion of the parent/child relationship necessarily involves a consideration of the relationship as it existed when the termination proceedings were initiated. At the time DHS initiated termination, KDG’s sons had been in foster care for almost six years. KDG had been in prison for three of those years—and demonstrably absent and unsupportive during the years he was out. KDG himself testified that his sons did not know him. And his sons’ foster parents, while acknowledging there was no antipathy by the sons toward KDG, testified about KDG’s prolonged absence from his sons’ lives. The youth court provided KDG the opportunity to act as a father to his sons through complying with the permanency order—an opportunity, the youth court found, he totally walked away from. The youth court weighed this along with the fact KDG had been out of jail for over a year and a half prior to the permanency order without making significant efforts to communicate with or support his sons. Thus, the chancery court did not err in finding clear and convincing evidence supported termination of parental rights on this ground. KDG argues the youth court in its bench opinion made no indication that it had considered alternatives to terminating KDG’s parental rights. The paramount concern in determining the proper disposition is the best interest of the child. Here, the chancery court properly considered the best interests of the children when rejecting alternatives to termination. |
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