Barnett v. Oathout
| Docket Number: | 2001-CA-01309-SCT Linked Case(s): 2001-CA-01309-SCT ; 2001-CA-01309-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 10-07-2004 Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of custody - Section 43-15-13 - Durable legal custody - Material change in circumstances Judge(s) Concurring: Smith, C.J., Waller, P.J., Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz and Graves, JJ. Dissenting Author : Easley, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 07-18-2001 Appealed from: Lee County Chancery Court Judge: John C. Ross, Jr. Disposition: Awarded custody to Appellee. Case Number: 98-1454 |
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| Note: | The motion for rehearing is granted. The original opinions are withdrawn, and this opinion is substituted therefor. Affirmed. Appellant taxed with costs of appeal. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Helen Barnett |
GARY L. CARNATHAN |
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| Appellee: | Charles E. Oathout | ALLISON FARESE THOMAS DAVID LEE ROBINSON |
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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: | Modification of custody - Section 43-15-13 - Durable legal custody - Material change in circumstances |
| Summary of the Facts: | The motion for rehearing is granted, and these opinions are substituted for the original opinions. The Mississippi Department of Human Services removed two children from their home based on a finding of medical neglect. Two and a half years later, after the boy’s parents divorced, the Foster Care Review Board recommended that DHS begin termination of parental rights proceedings. Rather than terminating parental rights, the Youth Court awarded durable legal custody of the children to the foster parents who had been the children’s care-givers for much of the two and a half years in which they had been in the legal custody of DHS. After the foster mother, Helen Barnett, refused to allow visitation to Charles Oathout, the natural father, Charles filed a petition in chancery court for modification of custody, or alternatively, to obtain visitation rights. Visitation was granted, but the chancellor denied the motion for a change in custody. During the next year and a half, many motions were filed in the chancery court with Charles attempting to gain custody of the boys and Helen attempting to terminate Charles’s visitation. During this period of time, Charles married again. In 2000, Charles filed a new petition for custody modification. The same chancellor who had previously denied a change of custody now awarded custody of the boys to Charles. Helen appeals. |
| Summary of Opinion Analysis: | Helen argues that the chancellor erred in applying the legal standard for custody modification cases by placing emphasis on Charles as a natural parent and by placing too much emphasis on Charles’s rehabilitation and present fitness to have custody, rather than whether the change of custody is in the best interest of the children. According to section 43-15-13, a major goal of DHS is to place children in its custody into a permanent living arrangement at the earliest opportunity. Termination of parental rights proceedings must be started within 15 months of adjudication of neglect unless the child has been placed in durable legal custody or long-term or formalized foster care by a court of competent jurisdiction, or DHS has determined that there are compelling or extraordinary reasons why termination of parental rights would not be in the best interest of the child. When DHS started termination of parental rights proceedings in the present case, the Youth Court, rather than terminating parental rights, awarded durable legal custody to Helen. There was not a voluntary relinquishment of custody. The fact that Charles filed a petition for modification of custody only two weeks after durable legal custody was awarded supports the supposition that this was not a voluntary act. It was more than likely an acquiescence on the part of Charles in an effort to avoid termination of parental rights proceedings. Under durable legal custody the parent retains some form of residual rights and responsibilities is a vital and obvious distinction to termination of parental rights. Another distinction is that a decision to grant durable legal custody is not permanent and is, therefore, subject to further review and modification by the courts. Thus, the granting of durable legal custody to Helen did not give her any greater rights than those of a foster parent. Here, the court used the correct legal standard. The chancellor found that there was a material change in circumstances adverse to the children such that the best interest of the children would be served by a modification of custody and that Charles had corrected the situation which caused the children to be removed initially. The chancellor’s findings were supported by substantial credible evidence in the record. |
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