Gunter, et al. v. Gray
| Docket Number: | 2002-CA-02106-SCT Linked Case(s): 2002-CA-02106-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 07-01-2004 Opinion Author: Dickinson, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Termination of parental rights - Series of abusive incidents - Section 93-15-103(3)(c) - Recommendation of guardian ad litem Judge(s) Concurring: Smith, C.J., Cobb, P.J., and Graves, J. Non Participating Judge(s): Diaz and Easley, JJ. Dissenting Author : Waller, P.J. Dissent Joined By : Carlson and Randolph, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 11-05-2001 Appealed from: Hinds County Chancery Court Judge: Stuart Robinson Disposition: Terminated Anthony Hilll's parental rights. Case Number: G-97-1173 R/1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Barbara Ann Gunter and Anthony Hill |
MELISSA LEE DAY GARDNER |
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| Appellee: | Theresa Dawn Hill Gray | SHARON PATTERSON THIBODEAUX |
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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 - Series of abusive incidents - Section 93-15-103(3)(c) - Recommendation of guardian ad litem |
| Summary of the Facts: | Theresa and Anthony Hill were divorced on the ground of irreconcilable differences. The parties shared joint legal custody of the couple’s two daughters, and Theresa had primary physical custody. The court later ordered Anthony to cease his alleged harassment of Theresa and to submit to psychiatric evaluation and treatment. Theresa filed criminal charges against Anthony on several occasions. Anthony was found guilty of one count of simple assault against Theresa and one count of assault on Theresa’s daughter from a previous marriage. He was again convicted of one count of simple assault against Theresa and was found guilty of stalking Theresa. Additionally, prior to Theresa’s remarriage, Anthony was convicted of trespassing on the property of her then-boyfriend on two separate occasions. He was also found guilty of telephone harassment and as a condition of his probation, was ordered to have no contact with either Theresa or her new husband, except as in the manner and at the times permitted by the chancery court. When Anthony violated his probation by telephoning Theresa, the court found Anthony guilty of a new charge of telephone harassment and revoked his suspended sentence and remanded him to the custody of the Mississippi Department of Corrections for two years. Anthony and his mother, Barbara Ann Gunter, filed a petition requesting the court to grant “grandparents visitation rights” to Barbara. Theresa filed a counter-petition, requesting that Anthony’s parental rights be terminated. The court appointed a Guardian Ad Litem for the children, who found that a genuine and strong bond existed between Anthony and his daughters and that a relationship existed between the minor children and Barbara. The court granted Theresa’s counter-petition to terminate Anthony’s parental rights and denied Barbara’s petition for grandparent’s visitation rights. Anthony and Barbara appeal. |
| Summary of Opinion Analysis: | Issue: Termination of parental rights The chancellor stated that Anthony had “failed to attempt to communicate with his minor children in one and one-half years.” Anthony argues that he did not abandon his children. Abandonment is any conduct by a parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child. The record does not show that Anthony has abandoned the children. Through testimony, it was clearly demonstrated that Anthony exercised his visitation regularly and routinely until the time of his incarceration. Following Anthony’s imprisonment, Theresa did not allow the girls to visit with Gunter. Therefore, Anthony’s only realistic means of contacting the children would have been at Theresa’s home, which placed Anthony at risk of contact with Theresa. In prohibiting Anthony from having any contact with Theresa, the chancellor made no provision for Anthony to contact his children under the circumstances. Theresa raises the fact that Anthony was convicted of simple assault against her minor daughter from a previous marriage. However, she failed to prove by clear and convincing evidence that Anthony engaged in a series of abuse against the daughter. Theresa argues that Anthony’s violence toward others meets the requirements of section 93-15-103(3)(c). While there was testimony that during his rages, the children were frightened, scared, cry and yell for him to stop, there was also testimony that the abuse was never directed towards Anthony’s children. Anthony’s conduct does not meet the “series of abusive incidents” as required by section 93-15-103(3). In addition, fear of what Anthony may do later is not grounds for termination of parental rights pursuant to section 93-15-103. Issue 2: Recommendation of guardian ad litem Anthony argues that the court erred in failing to make a finding on the record of the reasons for not adopting the recommendation of the Guardian Ad Litem. When a chancellor’s ruling is contrary to the recommendation of a statutorily required guardian ad litem, the reasons for not adopting the guardian as litem’s recommendation shall be stated by the court in the findings of fact and conclusions of law. Since the appointment of the guardian ad litem was mandatory in this case, the chancellor erred by failing to state the reasons for not adopting the guardian as litem’s recommendation. |
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