In re L.H.
| Docket Number: | 2011-CA-00401-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-08-2012 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Adjudication by youth court - Sexually abused child - Subject matter jurisdiction - Section 43-21-151(1)(c) - Notice - Adjudicatory hearing - Section 43-21-501(1)(b) - Section 43-21-105(q) - Section 43-21-505 - Service of summons - General appearance - Waiver of service - Sufficiency of evidence - Section 43-21-105(n) Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Carlton, Maxwell, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Irving, P.J., and Barnes, J., Concur in Part and in the Result Without Separate Written Opinion Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 02-22-2011 Appealed from: Hinds County Youth Court Judge: William Louis Skinner, II Disposition: MINOR CHILD ADJUDICATED SEXUALLY ABUSED Case Number: 25-YC-2010-P-436-1(124363 |
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| Party Name: | Attorney Name: | |||
| Appellant: | In the Interest of L.H., a Minor |
T. MURRY WHALEN |
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: | Adjudication by youth court - Sexually abused child - Subject matter jurisdiction - Section 43-21-151(1)(c) - Notice - Adjudicatory hearing - Section 43-21-501(1)(b) - Section 43-21-105(q) - Section 43-21-505 - Service of summons - General appearance - Waiver of service - Sufficiency of evidence - Section 43-21-105(n) |
| Summary of the Facts: | In 2008, L.H.’s mother died in a traffic accident. For approximately five months, W.G. and M.G., L.H.’s maternal grandparents, had temporary custody of L.H. In May 2009, L.H.’s father took custody of her, and the Appellants received visitation. The record indicates that L.H. visited with the Appellants at their home on June 13, 2009. According to the Appellants, from August 2009 to June 2010, L.H. lived with her paternal grandparents in Japan. The Appellants filed a motion for contempt against L.H.’s father. The Hinds County Chancery Court entered an order on June 28, 2010. The chancellor ordered that L.H.’s father would maintain primary custody of L.H. The chancellor further ordered that the Appellants would be granted visitation with L.H. for one week beginning on June 29, 2010. On the day that L.H. was to begin her visitation with the Appellants, the Hinds County Department of Human Services received a report that two of L.H.’s cousins had touched L.H. inappropriately at the Appellants’ home on March 13, 2009, and June 13, 2009. The Hinds County Youth Court Intake Unit recommended that the Hinds County youth court prosecutor file a petition alleging that L.H. was a sexually abused child. The youth court appointed an attorney guardian ad litem and an investigative guardian ad litem to represent L.H.’s best interests. Subsequently, the youth court issued the first of three shelter orders. The first shelter order placed L.H. in DHS custody. On July 9, 2010, the youth court issued a second shelter order returning L.H. to her father’s custody. Approximately one month later, the youth court issued its third shelter order and placed L.H. in the custody of her paternal grandparents so she could return to school. During October 2010, the Appellants’ attorney filed an entry of appearance on the Appellants’ behalf. On February 22, 2011, the youth court conducted an adjudicatory hearing on the youth court prosecutor’s petition. That same morning, the Appellants filed a motion to dismiss, arguing that the chancery court, not the youth court, had jurisdiction over L.H. Additionally, the Appellants argued that the youth court failed to provide them with proper notice of the adjudicatory hearing. The youth court judge held that the adjudicatory hearing would proceed. The DHS social worker who had been assigned to L.H.’s case recommended that the youth court adjudicate L.H. a sexually abused child. Ultimately, the youth court found that L.H. qualified as a sexually abused child. The youth court held that L.H.’s father would retain custody of L.H., and a previous no-contact order against L.H.’s cousins was to remain in effect. The maternal grandparents appeal. |
| Summary of Opinion Analysis: | Issue 1: Subject matter jurisdiction The Appellants argue that the youth court’s decision should be vacated and “transferred” to the chancery court because the youth court had no jurisdiction over L.H. Section 43-21-151(1)(c) provides that the youth court shall have exclusive original jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child except when a charge of abuse of a child first arises in the course of a custody action between the parents of the child already pending in the chancery court and no notice of such abuse was provided prior to such chancery proceedings. Here, a charge of abuse did not first arise during the course of a pending chancery court custody action between L.H.’s parents because there was not a pending custody action between L.H.’s parents. The youth court did not err by exercising subject-matter jurisdiction over the charge that L.H. had been sexually abused by her cousins while she was visiting the Appellants. Issue 2: Notice The Appellants argue that the youth court failed to give the Appellants notice of the adjudicatory hearing as required by section 43-21-501(1)(b) and that they were entitled to notice because they had custody and care of L.H. under the chancery court’s prior visitation order. Section 43-21-105(q) defines custody as the physical possession of the child by any person. The record is somewhat ambiguous regarding the filing date of the petition to adjudicate L.H. an abused child. If the record is construed to reflect that the petition was filed on July 7, 2010, then the Appellants would be entitled to notice pursuant to section 43-21-501(1)(b). However, if the record is construed to reflect that the petition was filed on July 9, 2010, then the Appellants would not be entitled to section 43-21-501(1)(b) notice because the Appellants did not have “physical possession” of L.H. when the amended petition was filed. Pursuant to the July 8, 2010, shelter order, the youth court had placed L.H. in DHS custody on that day. The next day, the youth court issued a second shelter order placing L.H. back in her father’s custody. Section 43-21-505 governs service of a summons under these circumstances. The record does not indicate that the Appellants received a summons in the manner contemplated by section 43-21-505(1). Nor does the record indicate that the Appellants received a summons that met the requirements of section 43-21-505(5). The Appellants’ attorney appeared at the youth court’s adjudicatory hearing. The Appellants’ attorney had filed an entry of appearance approximately five months before the hearing. Upon making a general appearance, one waives service of process. Because the Appellants’ attorney appeared at the hearing and participated in the proceedings beyond asserting insufficient notice and service of process, the Appellants subjected themselves to the youth court’s jurisdiction. Issue 3: Sufficiency of evidence The Appellants argue that the youth court’s decision was not supported by sufficient evidence. The Appellants claim that the petition to adjudicate L.H. an abused child alleged several time periods that were not verified. Section 43-21-105(n) defines ‘sexual abuse’ as the molestation of children under circumstances which indicate that the child's health or welfare is harmed or threatened. In this case, the social worker testified regarding her own report, the CAC’s report, and the investigative guardian ad litem’s report. Those reports were admitted into evidence. The investigative guardian ad litem recommended that the youth court find L.H. to be a sexually abused child. The CAC’s report concluded that L.H.’s version of events was credible. Thus, there is substantial evidence in the record to support the youth court’s adjudication that, based on a preponderance of the evidence, L.H. qualified as a sexually abused child. |
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