text:
    B.S.G., Appellant v. J.E.H., Appellee.
    No. 2005-CP-02318-COA.
    Court of Appeals of Mississippi.
    June 5, 2007.

      B.S.G., Appellant, pro se.
    J.E.H., Appellee, pro se.
    Before MYERS, P.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On November 14, 2005, the Lauder-dale County Youth Court entered a judgment terminating the parental rights of B.S.G.. and D.C.D. pursuant to a petition filed by the appointed guardian ad litem, John E. Howell. Aggrieved by the judgment, B.S.G. appeals. She presents the following issues for this Court’s review:

I. (a) Whether alternatives to termination, such as durable legal custody, were considered by the youth court, (b) Wfliether the youth court erred by denying B.S.G.’s petition to proceed in forma pauperis and request for counsel, violating her due process rights.
II. Whether there was clear and convincing evidence to support the finding that there was a substantial erosion of her relationship with E.D. caused by drug abuse, prolonged and unreasonable absences, failure to communicate, and prolonged imprisonment, pursuant to 93 — 15—103(3)(f).
III. Was the determination that DHS made diligent efforts to return the child to the natural parents to no avail, pursuant to 93 — 15—103(3) (d) (i) and (ii), supported by clear and convincing evidence.
IV. Whether B.S.G’s imprisonment supports termination of her parental rights, pursuant to 93 — 15—103(e)(ii).
V. Was there sufficient evidence that B.S.G. had no contact with E.D. to support termination of parental rights, pursuant to 93 — 15—103(3)(b).
VI. Whether the court’s adjudication of neglect was supported by clear and convincing evidence.
VII. Whether the determination that reunification with B.S.G. was not in E.D.’s best interest, pursuant to 93-15 — 103(3)(h), was in error.

FACTS

¶ 2. The minor child, E.D., was born on November 10, 1998. On May 13, 1999, Riley Hospital personnel reported to Lauderdale County Department of Human Services (Human Services) that B.S.G. had attempted to “jerk her child out of the car seat with the car seat restraints still on her, to the point that the child was turning blue.” Hospital personnel further observed that B.S.G. appeared to be under the influence of drugs. The youth court granted emergency custody of E.D. with Human Services and ultimately granted relative placement with her maternal aunt, W.P. On June 15, 1999, the youth court entered a judgment of disposition, after an adjudication of neglect was entered on June 10, ordering legal custody of E.D. to remain with Human Services and physical custody to remain with W.P. The court further ordered that B.S.G. enter drug rehabilitation treatment and after-care, as well as submit to unannounced drug screens and any other terms decided by Human Services. The court ordered strictly supervised visitation between B.S.G. and E.D. and stated the rights of the natural father, D.C.D., would be considered upon his release from prison. A review hearing was held on September 7, 1999, at which time the court placed full physical and legal custody of E.D. back with B.S.G., with Human Services to supervise the placement for a period of ninety days.

¶ 3. On June 30, 2003, Human Services petitioned the court for an adjudication of neglect, after discovering B.S.G. would leave E.D. with her maternal grandmother for extended periods of time. The grandmother complained that she was unable to care for E.D. for such extended periods. B.S.G.’s whereabouts were unknown and she was suspected of abusing drugs again. On July 1, 2003, the youth court held a shelter hearing and ordered temporary legal custody of E.D. with Human Services and physical custody with W.P. A hearing on the petition for adjudication of neglect was held on July 29, 2003, at which time the parties entered into an agreed resolution and the youth court entered a consent judgment. The court ordered the following: (1) the parties agreed there was a significant problem that needed to be addressed and submitted themselves to the jurisdiction and disposition of the youth court absent an adjudication of neglect or abuse, (2) custody of E.D. again be placed with Human Services for the placement of foster care and so that E.D. could receive medical treatment for any physical or mental problems she had at that time, (3) the parties agreed to fully cooperate with any recommended treatment programs or counseling by physicians, doctors, or psychologists, and (4) that visitation between the parties would be at the discretion of Human Services. The judgment stated that Human Services was to make reasonable efforts to reunite E.D. with B.S.G. On July 31, 2003, the youth court returned physical and legal custody to B.S.G., pending her completion of the service agreement with Human Services and after Human Services performed a home study.

¶ 4. On September 10, 2003, Lillie Cook, the Human Services designee, petitioned the youth court for a custody order and a formal adjudication of neglect, stating that “E.D. was in need of proper care and placement because B.S.G. had tested positive for cocaine.” The youth court ordered E.D. placed in the custody of Human Services for no longer than forty-eight hours, finding that Human Services had made reasonable efforts to maintain E.D. within her home but that the circumstances warranted her removal and that there was no reasonable alternative at that time. On September 11, the court held a shelter hearing and continued custody of E.D. with Human Services for a period not longer than thirty days. The court found that circumstances were of an emergency nature and no reasonable alternatives had been made to maintain E.D. within her own home nor were there any reasonable alternatives to custody at that time.

¶ 5. At the disposition hearing on October 7, 2003, B.S.G. did not contest the allegation of testing positive for cocaine. The youth court entered an order adjudicating neglect. The judgment stated that B.S.G. enter into a service agreement with Human Services, which included the following requirements: (1) attend Alcoholics Anonymous/Narcoties Anonymous meetings, (2) continue drug counseling, (3) maintain stable employment, (4) submit to unannounced drug screens, and (5) exercise supervised visitation. Physical and legal custody of E.D. was again placed with her maternal aunt, W.P. Human Services was ordered to monitor the placement of E.D. for ninety days. On January 6, 2004, the youth court ordered physical custody of E.D. returned to B.S.G., with legal custody to remain with Human Services, and set the matter for review on April 6, 2004.

¶ 6. However, on March 11, 2004, in a judgment of disposition, the youth court reinstated physical and legal custody of E.D. with W.P. Though there was no recording of the review hearing, the order stated the court heard testimony and sufficient evidence was presented for it to find that B.S.G. had relapsed on drugs. B.S.G. was granted supervised visits with E.D. under the control of Human Services and the matter was set for review. On May 11, 2004, the youth court found the present legal and physical placement of E.D. with W.P. should continue and that the matter would be reviewed again in ninety days.

¶ 7. On August 12, 2004, the youth court ordered custody of E.D. to remain under the current conditions in order to give B.S.G. sufficient time to complete the service agreement with Human Services. The youth court further ordered Human Services to begin working with B.S.G. on a graduated visitation schedule, in an effort to gradually work E.D. back into B.S.G.’s home.

¶ 8. On November 9, 2004, the youth court found physical and legal custody of E.D. was to remain with W.P. and, again ordered that B.S.G. have no contact with E.D. until future review by the youth court and upon B.S.G’s completion of the service agreement. The youth court granted an additional six months to B.S.G. to complete her service agreement with Human Services.

¶ 9. At the review hearing on February 10, 2005, the youth court held that physical and legal custody of E.D. would remain with W.P.; however, the court determined that B.S.G. had attempted to complete the items previously ordered by the court and further granted her limited, unsupervised visitation with E.D.

¶ 10. On April 19, 2005, upon review by the youth court, legal and physical custody of E.D. was held to remain the same. The court ordered joint counseling with E.D. and B.S.G. and that the records from same be released for the court’s review.

¶ 11. On June 7, 2005, the youth court reviewed the matter and found that custody of E.D. would remain as previously ordered. The court granted supervised visitation for D.C.D., on the condition that he submitted to a drug screen that day, as well as unannounced drug screens in the future.

¶ 12. On July 19, 2005, the youth court ordered full custody of E.D. placed with her maternal uncle and his spouse, C.D. and D.D. The court stated that B.S.G. had a long history of drug and/or alcohol abuse and was presently incarcerated for the same. The court held that because E.D. had been in the custody of Human Services on several occasions, and with her current placement with Human Services lasting over one year, full custody to C.D. and D.D. was in E.D.’s best interest. On August 11, 2005, John E. Howell, the appointed guardian ad litem throughout the proceedings, filed a petition to terminate the parental rights of B.S.G. and D.C.D. The following grounds for termination were listed:

(1) A substantial erosion of the relationship between E.D. and her natural parents, which was caused by their abuse of drugs, prolonged and unreasonable absence, failure to communicate with E.D., and prolonged imprisonment pursuant to Mississippi Code Annotated section 93-15-103(3)(f).
(2) That B.S.G. and D.C.D. had made no contact with E.D., pursuant to section 93-15-103(3)(b).
(3) E.D. had been adjudicated neglected and custody had been removed from the parents for placement for foster care, pursuant to section 43-15-13, and the court had determined that reunification was not in E.D.’s best interest, pursuant to section 93 — 15—103(3)(h).
(4)Termination was in the best interest of E.D. so that a stable plan for her future could be established and so that E.D. would be eligible for adoption.

¶ 13. On November 8, 2005, the youth court held a hearing on the petition for termination of parental rights. B.S.G. and D.C.D. were both present and proceeded pro se. B.S.G. was in the custody of the Mississippi Department of Corrections at that time. At the start of the hearing, the court stated that the proceedings were civil, therefore, it could not appoint counsel for B.S.G.; however, both parents had the right to participate in the proceedings. The court also noted that the guardian ad litem had petitioned to terminate parental rights so that E.D. could be adopted and placed in a long-term stable environment.

¶ 14. Howell presented testimony from Lillie Cook, Human Services designee in this matter, the maternal aunt, W.P., and the spouse of the maternal uncle, D.D. Cook testified that in her opinion there had been a substantial erosion of E.D.’s relationship with her parents due to their persistent drug use and long-term absence from her life. She stated that E.D. had been in and out of Human Services custody and/or relative placement since 1999. Cook testified that D.C.D. sought visitation with E.D. sometime in 2004, and that visitation occurred maybe one or two times to her knowledge. She further testified that neither parent had ever paid any type of support while E.D. was in Human Services’s custody.

¶ 15. W.P. testified she had physical custody of E.D. in 1999 for a short period. In June 2003, W.P. had physical custody of E.D., based on an adjudication of neglect. She stated, “I had her from then and she’s gone back to B.[S.G.] a few times for a couple months; but each time, when they [Human Services] would drug test, here and there, a random test, they had to take her back.” She further testified, “but what she [B.S.G.] doesn’t see is the effect of what it’s doing to her after she [E.D.] sees that she’s ... being taken away from her Mama again, ... each time she thinks she’s got hope of being with her Mama and that everything’s gonna be okay ... and it’s not being that way.” W.P. also stated, in her opinion, it would be in E.D.’s best interest that she be eligible for adoption by someone that would love her and keep her in a stable home. When Howell asked if W.P. felt the relationship between E.D. and her parents had been substantially eroded, W.P. answered, “It’s been two and a half years that, you know, she’s not been with either one of them as far as being there to take care of her everyday, do the things that a parent ... has to do to raise a child.”

¶ 16. D.C.D. questioned W.P. on why she had “put E.D. off in somebody else’s home [C.D. and D.D.] after E.D. had been in W.P.’s custody for such a long time. W.P. responded that E.D.’s placement with her was never intended to be a permanent situation. She further stated, “B.S.G. was supposed to get clean and regain custody of E.D.; however, once B.S.G. was incarcerated a decision had to be made for the long term care of E.D.” She testified that the family decided it was best if she live with C.D. and D.D.

¶ 17. D.D. testified that E.D. was doing very well with the current custody arrangement and she and her two girls got along very well together. She stated that she and her husband were able to support E.D. and they were willing to sacrifice to take care of her and provide a loving, stable environment. She testified that D.C.D. had called E.D. during the time she had been in their custody, “several times and he’s talked to her several times on the phone,” however, she and her husband had cancelled a visit with him because they discovered he was arrested again. D.D. also testified that in her opinion there had been a substantial erosion of E.D.’s relationship with her parents.

¶ 18. B.S.G. testified that she was sentenced to eight years, with six years to serve. She stated that she had been able to get fifteen percent of her time taken off, and was presently taking a three-month parenting class, a six-month drug and alcohol class, and a three-month experiencing God class, which together would take off another 180 days. She also testified that she had worked in a FEMA warehouse after Hurricane Katrina and was able to get a little over nine months taken off her remaining time to serve. According to B.S.G.’s testimony on the day of the hearing, she would be eligible to be out of incarceration “toward the end of 2006.” B.S.G. testified how much she loved E.D. and that she was aware of the confusion and disappointment she had caused E.D. She further stated that she did not want to cause anymore disappointment for E.D. She testified that she was making progress in her rehabilitation and that upon her release she would be able to provide a stable, loving home for E.D. B.S.G. said she was married and she had the support of her husband and mother-in-law to help her provide stability for E.D.

¶ 19. D.C.D. testified that he had been in prison until January 2005 and that he was, not financially stable to provide for E.D. He stated that he had offered to help with E.D. in any way that he was able but his help had been refused. He further stated he was glad E.D. had someone who could take care of her because he was not in a position to at that time. He testified that he did not have a problem with E.D. living with C.D. and D.D.

¶ 20. On November 14, 2005, the youth court entered a judgment terminating the parental rights of B.S.G. and D.C.D. The court found several of the grounds for termination of parental rights, pursuant to Mississippi Code Annotated section 93-15-103(3), had been satisfied. Specifically, the court determined the following:

(1) there was a substantial erosion in the relationship between E.D. and her natural parents caused by their drug abuse, prolonged and unreasonable absences, failure to communicate, and prolonged imprisonment; (2) Human Services had intervened on at least three prior occasions, giving B.S.G. the opportunity to regain custody to no avail; therefore, Human Services had made diligent efforts to develop and implement a plan for reunification; (3) B.S.G. was presently incarcerated for drugs and D.C.D. had just been released from an extended incarceration, and that both had failed to eliminate ongoing drug behavior, which prevented placement of E.D. with'either natural parent; (4) both natural parents made no contact with E.D. for an extended period of time due to incarceration; and (5) E.D. had been adjudicated neglected and custody had been removed from the natural parents, and the court determined reunification not to be in E.D.’s best interest.

The judgment stated that full legal and physical custody of E.D. was to continue with C.D. and D.D. The court also ordered that C.D. and D.D. have full authority and consent for relative adoption of E.D. Aggrieved by the youth court’s decision, B.S.G. appeals.

STANDARD OF REVIEW

¶ 21. In order to establish a case for termination of parental rights, the burden of proof is clear and convincing evidence. Miss.Code Ann. § 93-15-109 (Rev.2004). On appeal, however, the standard of review in termination of parental rights cases is limited. D.J.L. v. Bolivar County Dep’t of Human Servs., 824 So.2d 617, 620(¶ 10) (Miss.2002) (citing S.N.C. v. J.R.D., 755 So.2d 1077, 1080(¶7) (Miss. 2000)). This Court gives deference to the family court’s findings of fact; we will uphold the family court’s decision unless we determine that it is not supported by substantial, credible evidence. G.Q.A. v. Harrison County Dep’t of Human Servs., 771 So.2d 331, 335(¶ 14) (Miss.2000) (citing S.C.R. v. F.W.K., 748 So.2d 693, 700(¶40) (Miss.1999)). We must determine “not how we would have decided the case ab initio but whether there would be credible proof from which a rational trier of fact may have found as the court did in this case.” D.J.L., 824 So.2d at 620(¶ 10) (citing Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992)). “The entire record must be examined and that evidence which supports or reasonably tends to support the findings of fact made by the trial judge, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact, must be accepted.” May v. Harrison County Dep’t of Human Servs., 883 So.2d 74, 77(¶ 10) (Miss.2004) (citing Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987)). Once that burden is met, the paramount consideration is the best interest of the child. In re V.M.S., 938 So.2d 829, 832(¶ 6) (Miss.2006) (citing Lauderdale County Dep’t of Human Servs. by Barnett v. T.H.G., 614 So.2d 377, 385 (Miss.1992)).

ISSUES AND ANALYSIS

II. Whether there was clear and convincing evidence to support the finding that there was a substantial erosion of her relationship with E.D. caused by drug abuse, prolonged and unreasonable absences, failure to communicate, and prolonged imprisonment, pursuant to 98 — 15—103(3)(f).
III. Was the determination that DHS made diligent efforts to return the child to the natural parents to no avail, pursuant to 93-15-103(3)(d)(i) and (ii), supported by clear and convincing evidence.
IV. Whether B.S.G’s imprisonment supports termination of her parental rights, pursuant to 93-15-103(e)(ii).
VI. Whether the court’s adjudication of neglect was supported by clear and convincing evidence.
VII. Whether the determination that reunification with B.S.G. was not in E.D.’s best interest, pursuant to 93 — 15—103(3)(h), was in error.

¶ 22. As these five issues are intertwined, in that each questions the youth court’s determination that there was sufficient evidence to find grounds for termination of parental rights, pursuant to Mississippi Code Annotated section 93-15-103 (Rev.2004), they will be discussed together.

¶ 23. When a child has been removed from the home of its natural parents and cannot be returned to the home within a reasonable length of time because returning to the home would be damaging to the child, or the parent is unable to care for the child, Mississippi Code Annotated section 93-15-103 (Rev.2004) provides in pertinent part the following grounds for termination of parental rights:

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
(d) When the child has been in the care and custody of a licensed child caring agency or [DHS] for at least one (1) year; that agency or the department has made diligent efforts to develop and implement a plan for return of the child to its parents, and:
(i) The parent has failed to exercise reasonable available visitation with the child; or
(ii) The parent, having agreed to a plan to effect placement of the child with the parent, fails to implement the plan so that the child caring agency is unable to return the child to said parent; or
(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody:
(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent; or
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and the child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment; or
(h) The child has been adjudicated to have been abused or neglected and custody has been transferred from the child’s parent(s) for placement pursuant to Section 43-15-13, and a court of competent jurisdiction has determined that reunification shall not be in the child’s best interest.

¶ 24. B.S.G. argues that if there is erosion of her relationship with E.D. then it is due to B.S.G. being prohibited from communicating with E.D., either by the trial court, W.P., or D.D. She states, “the only clear and convincing evidence of drug abuse is a positive urine screen in September of 2003 and April 2005, the arrest for possession in 2004, and her own admissions. ...” B.S.G. argues that the foregoing evidence did not directly cause erosion of her relationship with E.D. She argues that the testimony of her leaving E.D. for extended periods of time with E.D.’s grandmother is not the truth, stating that when she did not pick E.D. up on the day she was supposed to “I would call to make sure they were all right....” B.S.G. states, “the disease had me convinced that it would be okay to leave E.D. with my mother because E.D. was being taken care of....” B.S.G. argues her lack of communication with E.D. was due to attempts to communicate with her being denied by W.P. and/or D.D., not her unwillingness to communicate with E.D.

¶25. B.S.G. continuously argues that the testimony heard during the termination hearing were not true and were biased against her. She also continuously concedes that she did use drugs, that she did leave E.D. for extended periods with her mother, that she had contact with E.D., and that she is incarcerated. B.S.G., in the outset, argues that Howell did not sufficiently represent E.D.’s best interest, again stating that he presented no independent or impartial evidence. We find all of these arguments wholly without merit.

¶ 26. In M.J.S.H.S. v. Yalobusha County Dep’t of Human Servs., 782 So.2d 737, 741(¶ 14) (Miss.2001), the court held, regarding the requirements of the guardian ad litem, that one must be competent, provide representation without any adverse interest to the child, and must be fully informed of the his duties. M.J.S.H.S., 782 So.2d at 741(¶ 14) (citing S.N.C. v. J.R.D., 755 So.2d 1077, 1082(¶ 16) (Miss.2000)). The court stated the role of a guardian ad litem is to investigate, make recommendations to the court or enter reports, and act as a representative of the court, appointed to assist it in properly protecting the interests of an incompetent person. S.N.C., 755 So.2d at 1082(¶ 16). Howell did not bring the motion to terminate at the behest of the State and/or Human Services, rather, he brought the motion acting as the appointed guardian ad litem for E.D. and solely with the best interest of E.D. in mind. Furthermore, because Howell individually initiated the action, the court accepted his complaint as his recommendations to the court. We find that Howell adequately fulfilled the requirements as guardian ad litem for E.D. in matters before the youth court and, specifically, as to the termination of parental rights. Furthermore, although the guardian is required to perform his duties competently, there is no requirement that the court defer to his recommendations in its judgment. M.J.S.H.S., 782 So.2d at 741(¶ 18).

¶ 27. Additionally, we find the record provides adequate substantial evidence and that a rational trier of fact could have found that termination of parental rights was in E.D.’s best interest. B.S.G.’s arguments merely place blame for the repercussions of her life choices on the other persons involved, who have, consequently, maintained E.D.’s best interest throughout the past seven tumultuous years. Not only did B.S.G.’s mother, sister, brother, and sister-in-law give her every opportunity to get herself clean and in a position to properly care for E.D., but also both the youth court and Human Services extended every opportunity and resource its at disposal so that she could be reunited with E.D.

¶ 28. B.S.G. testified that she had been in trouble with the law prior to E.D.’s birth, and unfortunately for E.D., a pattern of poor life choices continued. B.S.G. had E.D. taken out of her custody in 1999 by Human Services, although that adjudication of neglect was not enough to sober B.S.G., evidenced by similar incidents continuing to occur. The record indicates three petitions for adjudication of neglect directly related to B.S.G.’s drug abuse. E.D. was formally adjudicated neglected twice and one time the parties agreed to a consent judgment under the agreement that B.S.G. had a problem that must be addressed. Therefore, B.S.G.’s argument that the youth court’s adjudication of neglect is not supported by clear and convincing evidence is wholly without merit.

¶29. Furthermore, this Court is at a loss to understand how B.S.G. can claim that Human Services did not make diligent efforts to reunite her with E.D. According to the record, Human Services made numerous attempts to aid B.S.G. in regaining custody of E.D., consistently from March 2004 until July 2005. However, each time B.S.G. regained custody or visitation with E.D., B.S.G. would abuse drugs and/or leave E.D. for extended periods in the care of relatives, which ultimately placed the responsibility of E.D.’s best interest with the youth court. This cycle continued for over two years, essentially until B.S.G. was incarcerated. Again, this argument is wholly without merit.

¶ 30. The record is replete with substantial, credible evidence that would lead a rational trier of fact to find the grounds for termination of parental rights discussed supra were satisfied with clear and convincing evidence. Furthermore, we find B.S.G.’s history of drug abuse, her inability to complete the court’s requirements to regain custody, coupled with her present incarceration and the testimony presented during the hearing, to support the court’s determination that reunification with B.S.G. was not in E.D.’s best interest. Additionally, there is little evidence to support B.S.G.’s assertions that she is capable of providing stability and long-term care for E.D. The paramount consideration for this Court is to determine what is in the best interest of E.D. In re V.M.S., 938 So.2d at 832(¶ 6). After a thorough review of the record, we find the evidence supports the youth court’s findings that termination of parental rights was in E.D.’s best interest. Therefore, we find that issues II, III, IV, VI, and VII are without merit.

V. Was there sufficient evidence that B.S.G. had no contact with the E.D. to support termination of parental rights, pursuant to 93-15-103(3)(b).

¶ 31. Mississippi Code Annotated section 93-15-103(3)(b) (Rev.2004) states:

“(3) Grounds for termination of parental rights shall be based on ... (b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one year....”

¶ 32. While B.S.G. does not specifically argue that she had contact with E.D. at least one year prior to the termination hearing, we find that the record indicates there is not sufficient evidence to satisfy this ground for termination. According to the record, the youth court granted B.S.G. visitation with E.D. on February 10, 2005, and on April 19, 2005 the court ordered joint counseling with E.D., who was two days shy of seven years old at the time of the hearing. The termination hearing was held on November 8, 2005. Therefore, at least nine months prior to the hearing B.S.G. presumably was in contact with E.D. This ground for termination is not satisfied in that E.D. was older than three years of age and B.S.G. presumably had contact with her within the statutory period of one year. While we agree that section 93—15—103(3)(b) is not an applicable ground for termination, we find that the youth court’s determination to terminate parental rights is sufficiently supported with the application of the other listed grounds. We further find this to be harmless error.

I. (a) Whether alternatives to termination, such as durable legal custody, were considered by the youth court.

¶ 33. B.S.G. argues the youth court erred by not considering alternatives to termination of parental rights, specifically, durable legal custody. We disagree.

¶ 34. In order for durable legal custody to be an option, Mississippi Code Annotated section 43-21-609 (Rev.2004) in pertinent part provides:

In neglect and abuse cases, the disposition order may include any of the following alternatives, giving precedence in the following sequence:
(a) Release the child without further action;
(b) Place the child in the custody of his parents, a relative or other person subject to any conditions and limitations as the court may prescribe. If the court finds that temporary relative placement, adoption, or foster care placement is inappropriate, unavailable or otherwise not in the best interest of the child, durable legal custody may be granted by the court to any person subject to any limitations and conditions the court may prescribe; such durable legal custody will not take effect unless the child or children have been in the physical custody of the proposed durable custodians for at least one (1) year under the supervision of [DHS].

¶ 35. The record is replete with review hearings held by the youth court in an effort to make determinations as to what would be in the best interest for E.D. Durable legal custody could have been considered at any time during the disposition hearings, although the record does not indicate that it was a viable option before the court. On November 9, 2004, the court stated when it granted B.S.G. an additional six months to complete her service agreement with Human Services that the next step in the matter would be termination of parental rights. Furthermore, durable legal custody is not a mandatory option for the court and ultimately the paramount concern in determining proper disposition continues to be the best interest of the child, not reunification of the family. In re Petition of Beggiani, 519 So.2d 1208, 1213 (Miss.1988). This issue is without merit.

I. (b) Whether the youth court erred by denying B.S.G.’s petition to proceed in forma pauperis and request for counsel, violating her due process rights.

¶ 36. B.S.G. argues that her due process rights were violated when the youth court denied her petition for in for ma pauperis and her request for counsel. This issue is res judicata.

¶ 37. The youth court denied B.S.G.’s petition on the grounds that she had not followed proper procedure, specifically, proper notice had not been filed with the court. In her petition, B.S.G. asserted that she was indigent, however stated that she was “married to a stable business owner.” The youth court held, not only had B.S.G. not followed proper court procedure to perfect her petition but, also that her statements were contradictory, further supporting denial of the petition. Additionally, the record indicates on February 1, 2006, the Mississippi Supreme Court denied B.S.G.’s appeal of the youth court’s denial of her petition. The court held, “after due consideration of the pleadings and the United States Supreme Court’s decision in M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), the undersigned Justice finds that the Reply to Youth Courts denial of In Forma Pauperis Appeal should be denied.” The doctrine of res judicata, as stated in Miss. Dep’t of Human Servs. ex rel. Allen v. Sanford, 850 So.2d 86, 88(¶ 9) (Miss.2003), applies to this issue. Sanford, 850 So.2d at 88(¶ 9). We find the parties to be substantially identical, as well as the circumstances of the issue to be the same. Therefore, this issue is subsequently barred from our review.

¶ 38. THE JUDGMENT OF THE YOUTH COURT OF LAUDERDALE COUNTY TERMINATING PARENTAL RIGHTS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ„ CONCUR.

      . Initials are used to protect the minor’s identity.

      . The court's judgment stated that B.S.G. had never signed the previously ordered service agreement with Human Services and had only completed the two-week detoxification program toward rehabilitation for her drug abuse; therefore, B.S.G. was not even aware of all that was required of her to regain custody of E.D.

      . The record stated that Judge Coleman’s personal notes were the only recording of the dispositional hearing held on March 11, 2004, which indicated that B.S.G. was in a rehabilitation program at that time, evidencing her relapse on drugs.

      . In the transcript of this hearing, Judge Coleman noted that E.D. was five years old at the time and "in need of stability without the failed promises of B.S.G.” He then ordered B.S.G. no visitation or contact with E.D. until the matter was reviewed again in ninety days, however, the actual order in the court record did not specifically state this.

      . The court stated in its order that it was only granting this “last additional grace period for the mother because termination of parental rights is the only remaining step which this court has not pursued.”

      . The court listed the following terms to be included in the service agreement: (1) B.S.G. was required to sign a release form from her Weems Mental Health Center counselor so that her counseling records were available for the court’s review, (2) obtain a drug and alcohol evaluation to determine if out-patient or inpatient treatment was needed, this evaluation should also be released to the court, (3) provide proof of employment and a stable home environment, and (4) submit to unannounced drug screens.

      . At some point between the February 10 and April 19 review hearings, it appears from the record that B.S.G. retained Leigh Ann Key for legal representation.

      . D.C.D. had apparently been incarcerated until sometime in early 2005.

      . B.S.G. filed a reply brief on February 6, 2007 and was still incarcerated, however, in the reply brief she states she will be released in July [presumably, 2007].

      . B.S.G. states in her brief that she was on house arrest in 2000 for an incident that occurred in 1997.

      . On July 1, 2003, Human Services petitioned the youth court for an adjudication of neglect. On July 14, the parties agreed to a consent judgment and B.S.G. was ordered to enter into a service agreement with Human Services. On July 31, 2003, physical and legal custody was returned to B.S.G., however, on September 11, 2003, Human Services petitioned the youth court for an adjudication of neglect because B.S.G. had tested positive for cocaine. On October 7, 2003, physical and legal custody was granted to W.P., and while B.S.G. regained custody on January 1, 2004, by March 22, B.S.G. had relapsed. After March 22, 2004, the youth court and Human Services worked with B.S.G., granting her visitation and extending her additional time to complete her service agreement; however, sometime between June and July 2005 B.S.G. was incarcerated on a drug possession charge.

      . While there is no specific evidence that B.S.G. did exercise her visitation rights and/or that she and E.D. attended joint counseling, there is also no evidence to refute the presumption that B.S.G. did have contact with E.D. at least seven months prior to the termination hearing.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Fredrick GOLDEN, Appellant v. Christopher EPPS, Appellee.
    No. 2006-CP-00652-COA.
    Court of Appeals of Mississippi.
    June 5, 2007.

      Fredrick Golden, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Inmate Fredrick Golden filed a motion for post-conviction relief in the Circuit Court of Sunflower County asserting unlawful termination of his earned time credits. The court found that Golden forfeited his eligibility for earned time credits after he was convicted as an habitual offender for escape and dismissed his petition with prejudice. From this decision Golden appeals pro se stating several issues which we have combined for clarity into one: whether the Mississippi Department of Corrections (MDOC) took away his earned time allowance without following MDOC administrative procedures, thus depriving him of due process and equal protection of the law. Finding no error, we affirm.

FACTS

¶ 2. Golden was convicted in the Circuit Court of Attala County, Mississippi on March 5, 1997 of grand larceny and was sentenced to serve three years in the custody of MDOC. Three months later on June 11, 1997, he was convicted in the Circuit Court of Montgomery County, Mississippi of arson and burglary. For these convictions he was sentenced to ten years on the arson charge and to a seven-year concurrent sentence on the burglary conviction. On the same day, June 11, he was transferred to the Grenada County Jail and during the course of the transfer he escaped custody. He succeeded to elude law enforcement for thirty-one days. Subsequently, he was captured and convicted of escape in the Grenada County Circuit Court, and on August 20, 1997, he was sentenced as an habitual offender for the escape to serve a five-year term to run consecutively to the previous sentences. Because Golden was convicted as an habitual offender, the sentence was mandatory and thus there was no possibility of parole. Miss.Code Ann. § 99-19-81 (Rev.2002).

¶ 3. Eight years later on November 18, 2005, Golden filed a “motion to show cause” in the Circuit Court of Sunflower County requesting that the court order MDOC to show why it had not credited him pursuant to Mississippi Code Annotated section 47-5-138 (Supp.2006) with 584 days of earned time allowance toward his release date on his non-habitual sentence of ten years. He also sought a decision on why he was denied 180 days of meritorious time while classified as a trusty. The show cause action was dismissed on December 16, 2005. The court found that Golden failed to present evidence that he had exhausted the administrative remedies of MDOC, pursuant to Mississippi Code Annotated sections 47-5-801 through 47-5-807 (Rev.2004) in seeking to resolve his issues. However, in the record before this Court are documents showing that in the summer of 2004 he advanced the same argument through the MDOC administrative remedy program (ARP). The final ARP decision issued on August 11, 2004, held that Golden had received earned time on the ten year non-habitual sentence and thirty days of trusty time. The ARP decision held that because Golden was serving an habitual sentence for the escape conviction, he was not allowed to earn meritorious leave time, trusty time, or earned leave time on the habitual portion, the five-year term, of his sentence.

¶ 4. On January 31, 2006, Golden filed a motion for post-conviction relief and following discovery, a hearing was held on his motion on February 28, 2006. A part of the record before the circuit court was the unopposed affidavit of Gloria Gibbs, correctional records technician supervisor with MDOC. Gibbs reviewed Golden’s sentence computation record and stated that he received one year and 183 days earned time credit on the ten year non-mandatory sentence and received one year and 210 days of trusty earned time. Also, Gibbs said that Golden is now serving the five-year mandatory sentence for escape and is not eligible for earned release supervision. The circuit court found that MDOC had applied one year and 183 days of earned release time before he escaped from custody on August 20, 1997. Further, the court found that once Golden was convicted of escape, he forfeited all earned time pursuant to Mississippi Code Annotated section 47-5-139. (Rev.2004). The court dismissed Golden’s post-conviction petition with prejudice and this appeal followed.

STANDARD OF REVIEW

¶ 5. In reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Graves v. State, 822 So.2d 1089, 1090(¶ 4) (Miss.Ct.App.2002) However, where questions of law are raised, the applicable standard of review is de novo. Id. To be successful on a motion for post-conviction relief, a defendant bears the burden of proving by a preponderance of the evidence that he is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989).

ISSUE AND ANALYSIS

I. Whether the Mississippi Department of Corrections (MDOC) took away his earned time allowance without following MDOC administrative procedures thus depriving him of due process and equal protection of the law.

¶ 6. We are faced at the outset with a question of law: whether we have jurisdiction over Golden’s motion for post-conviction relief because it was not timely filed. Mississippi Code Annotated section 99-39-5(2) (Supp.2006) requires that motions for post-conviction relief be filed within three years after entry of judgment of conviction. The three-year limitation exceptions are: (1) cases in which the prisoner can show that there has been an intervening decision of the Mississippi or the United States Supreme Court which would actually adversely affect the outcome of his conviction or sentence; (2) cases in which the prisoner has new evidence, not reasonably discoverable at trial, that would be practically conclusive so that had it been introduced at trial it would have caused a different result in conviction or sentence; or (3) cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Id.; Clark v. State, 875 So.2d 1130, 1132(¶ 10) (Miss.Ct.App.2004). Golden’s claim is based on his belief that he was entitled to an administrative hearing at MDOC before his earned time was forfeited after the June 11,1997 escape sentence.

¶ 7. The State argues for the first time on appeal that Golden’s appeal should be dismissed because it was not filed within the three-year limitations period for post-conviction relief, and that none of the three exceptions applies to his facts. We agree with the State’s argument. Applying the three-year statute, we find that Golden had until August of 2000 to file his post-conviction relief petition. The record shows that his motion to show cause, which the court dismissed for failure to exhaust administrative procedures, was filed on November 18, 2005, more than five years beyond the limitations period. Furthermore, Golden filed his motion for post-conviction relief on January 31, 2006, five years and four months past the limitations period. Golden makes no claims regarding the tolling statute and we find no exceptions which would apply to him. The State did not present the three-year limitation argument to the trial judge. However, we find that Golden’s PCR motion is time-barred coming more than five years after the elapse of the three-year statue of limitations.

¶ 8. Notwithstanding the time bar, Golden’s claim must fail nonetheless because the very thing about which he complains— the loss of earned and trusty time — did not happen. The State candidly admits in its brief to this Court that MDOC erred by not automatically revoking Golden’s earned time upon his escape conviction, as required by Mississippi Code Annotated section 47-5-139(3) (Rev.2004). That statute provides in part, “All earned time shall he forfeited by the inmate in the event of escape and/or aiding and abetting an escape.” (emphasis added). The State says “[A] review of Golden’s time sheet shows that for some reason MDOC did not revoke Golden’s earned time following his escape. His time sheet shows that following his escape he was allowed to keep both the ten (10) days MET [meritorious earned time] which he had earned prior to the escape as well as his ERS [earned release supervision] eligibility date.” The State also notes that Golden was allowed to receive one year and 210 days of trusty earned time off the non-mandatory sentence. Our examination of the unopposed affidavit of MDOC recordkeeper, Gibbs, and Golden’s sentence computation report shows the State’s assertion to be true. If Golden’s argument is that he should be receiving earned time on the escape conviction sentence then this argument is plainly rejected by section 47-5-139(3), which uses the mandatory “shall” and states that all earned time “shall be forfeited” by the inmate in the event of escape. The second part of the statute allows MDOC discretion to restore earned time but only if the escapee returns to the institution voluntarily, without expense to the State and without an act of violence while a fugitive. There is no record evidence to show any voluntary act by Golden showing he peacefully returned to custody. Instead the record shows that Golden was at large for thirty-one days after his escape.

¶ 9. Golden apparently is pinning his hopes on subsection (2) of Mississippi Code Annotated section 47-5-138(2)(Rev.2004), which says, “An inmate may forfeit all or part of his earned time allowance for a serious violation of rules. No forfeiture of the earned time allowance shall be effective except upon approval of the commissioner or his designee, and forfeited earned time may not be restored.” Golden urges us to read that part of the statute which states that no forfeiture of earned time allowance can be effective “except upon approval of the commissioner or his designee,” to mean that he was entitled to an administrative hearing within MDOC after the escape sentence and the application of section 47-5-139(3). Golden claims his rights were violated because he was never issued a rule violation report for escape through the MDOC disciplinary-procedures and never given a disciplinary hearing and thus never had his forfeiture okayed by the commissioner.

¶ 10. This argument fails for two reasons. First and foremost, Golden’s rights were not violated because he did not lose any earned release or trusty time. Secondly, Golden bases his argument on the administrative disciplinary procedure, but the enactment which could have been used against him is a legislative edict. We have noted that the forfeiture of earned release time for escape or attempted escape is a legislative enactment. “The legislature specifically stated that a prisoner would sacrifice all earned time upon attempted escape.” Boler v. Bailey, 840 So.2d 734, 735(¶ 6) (Miss.Ct.App.2003). Because Golden was convicted of violating a state statutory provision rather than an internal MDOC rules violation, it was not required that he be given an MDOC disciplinary hearing and have his forfeiture approved by the MDOC commissioner.

¶ 11. For all of these reasons, the issues of Golden are without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ROBERTS AND CARLTON, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY.

      . For any sentence imposed after June 30, 1995, an inmate may receive earned time allowance for four and one-half days for each thirty days served if, MDOC determines that the inmate has complied with the good conduct and performance requirements of the earned time allowance program. Miss.Code Ann. § 47-5-138(5) (Supp.2006). The earned time allowance shall not exceed fifteen percent of an inmate’s term of sentence. Id.

      . Trusty time is a reduction in sentence which may be granted in addition to any other administrative reduction in sentence to an offender in trusty status as defined by the classification board of MDOC. Miss.Code Ann. § 47-5-138.1 (Rev.2004). Prior to April 28, 2004, the trusty earned time allowance was ten days reduction of sentence for each thirty days of participation in an approved program while in trusty status. After April 28, 2004, a trusty earned time allowance of thirty days reduction of sentence may be granted for each thirty days of participation in an approved program while in trusty status. Id. However, another subsection of the same statute disallows an offender in trusty status a reduction of sentence under the statute if he is convicted as an habitual offender under sections 99-19-81 through 99-19-87. Miss. Code Ann. § 47-5-138.l(2)(b) (Rev.2004).


author: CHANDLER, J.,

text:
    In the Matter of the CONSERVATORSHIP OF Stoven COLE. Jonathan Cole, Appellant v. Larry Cole, Appellee.
    No. 2005-CA-02243-COA.
    Court of Appeals of Mississippi.
    June 5, 2007.

      E. Michael Marks, Jackson, Julie Ann Epps, Canton, attorneys for appellant.
    Robert James Bresnahan, Lester F. Williamson, Meridian, attorneys for appel-lee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Jonathan Cole appeals from the judgment of the Chancery Court of Laud-erdale County appointing his brother, Larry Cole, temporary conservator of the person of his father, Stoven Cole, and appointing attorney Lester F. Williamson, Jr. conservator of Stoven Cole’s estate. Jonathan argues that the chancellor manifestly erred in finding him unqualified to serve as conservator of Stoven’s estate, that the chancellor manifestly erred in not appointing him conservator of Stoven’s person, and that the chancellor’s exclusion of his own expert testimony in the field of nursing was an abuse of discretion.

¶ 2. Our review of the chancellor’s opinion indicates that, after the chancellor thoroughly considered all of the relevant evidence, he appointed Larry Cole as temporary conservator of Stoven’s person and Lester F. Williamson as conservator of Stoven’s estate. This decision was supported by substantial, credible record evidence and was not clearly erroneous. There was no error in the chancellor’s exclusion of Jonathan’s proffered expert testimony. For these reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Jonathan and Larry Cole are the only children of Stoven Cole. Stoven’s wife, Johnnie Mae Cole, predeceased him in October 2001. This action commenced on September 20, 2004, when Larry Cole filed a complaint requesting that the court establish a conservatorship for Stoven. Larry alleged that Stoven was mentally incompetent and unable to handle his own affairs. Larry requested appointment as the conservator of Stoven’s person and estate. On October 4, 2004, Jonathan filed an answer and defenses to the complaint and a counter-complaint alleging he should be appointed the conservator of Stoven’s person and estate. Jonathan also requested the appointment of a guardian ad litem (GAL).

¶ 4. On October 13, 2004, the chancery court ordered that Larry and Jonathan each file an accounting of the assets of Stoven Cole known to them. The court appointed Lester F. Williamson as GAL and ordered him to undertake an investigation of funds received by Stoven and Johnnie Mae Cole as settlement for their injuries from an automobile accident. Jonathan’s sworn accounting related that in October 2001 and November 2002, Stoven and Johnnie Mae had received settlement checks totaling $929,546. The accounting showed that, while the majority of these funds had been invested in annuities, in November 2001, $100,000 in cash was placed in a safe-deposit box. Of the $100,000, on August 12, 2004, only $8,000 remained. Jonathan’s accounting further showed that, on November 26, 2002, Jonathan had received $57,000 as a gift, on April 12, 2004, Larry had received $33,333.33 as a gift, and on April 18, 2004, Larry and Jonathan had each received $46,681.98 as gifts.

¶ 5. On May 18, 2005, the court entered an agreed order appointing Jonathan as the temporary conservator of Stoven’s assets and Larry as the temporary conservator of Stoven’s person. The court ordered Jonathan to transfer back to Stoven certain annuity accounts which Jonathan had transferred into his own name. The court ordered Jonathan to pay for any tax consequences incurred from the transfers. The court also ordered Jonathan to reimburse the conservatorship estate in the amount of $5,000 and for both Jonathan and Larry to account for any funds received or expended by them for the benefit of Stoven after May 18, 2005. A hearing occurred on September 12, 2005 that was not transcribed. After the hearing, the court entered a bench opinion identifying the issues for adjudication and setting the hearing date.

¶ 6. Prior to the hearing, Larry withdrew his request to be appointed conservator of Stoven’s estate. At the hearing on October 28, 2005, it was established that Stoven was seventy-five years old and suffered from multiple health conditions including early stage Alzheimer’s disease. Stoven received approximately $750 per month in Social Security benefits. In 1996, Stoven gave Jonathan power of attorney. Later, Jonathan assisted Stoven and Johnnie Mae with investing the settlement funds. In May 2004, some of the settlement funds were transferred into two annuities with Allianz Life Insurance Company of North America. One annuity was established with an initial premium of $534,659.46 and the other with an initial premium of $65,161.59. The annuitant was Stoven Cole. When the investments were made, Allianz paid Stoven bonuses of approximately $50,000 and $6,000. Jonathan testified that the entire $6,000 bonus was invested in the smaller annuity and that $30,000 of the $50,000 bonus was invested in the larger annuity. Larry testified that the remaining $20,000 was sent to Stoven, who cashed the check and placed some part of the funds in the safe-deposit box.

¶ 7. In fall 2004, Jonathan used the power of attorney to transfer the funds in the larger Allianz annuity from Stoven to himself. On September 15, 2004, Allianz sent Jonathan a letter confirming the transfer of funds from Stoven to Jonathan. The transfer caused a taxable event in the amount of $34,627.36. Jonathan testified that he transferred the funds out of Sto-ven’s name in order to protect them from Larry. Jonathan feared that Larry was trying to manipulate Stoven into giving him money. Pursuant to the agreed order, Jonathan transferred the funds back to Stoven on September 12, 2005. Allianz confirmed the change in ownership by letter dated September 26, 2005. This transfer caused a taxable event in the amount of $48,814.01. Jonathan testified that he would abide by the agreed order requiring him to pay the taxes from both transfers but stated that he planned to ask the Internal Revenue Service for forgiveness.

¶ 8. Jonathan testified that, of the money placed in the safe-deposit box, Stoven used about $18,000 to buy a van. Larry stated that he or his daughter, Latisha Brown, brought Stoven to the bank as often as several times a month and that Stoven routinely removed cash from the box to pay household bills. Larry and Brown testified that they never took cash from the box during these visits. Jonathan testified that, in 2004, he accompanied Stoven to the safe-deposit box and removed $20,000 from the box with Stoven’s permission. Of this amount, Jonathan used $5,000 to pay his attorney. Later, he returned $15,000 to the GAL. In the agreed order, the court ordered Jonathan to repay the $5,000 to the estate at the rate of $500 per month.

¶ 9. It was further established that Jonathan lived in Jackson and is a registered nurse who was unemployed at the time of the hearing. Larry testified that he was forty-six years old and has lived with Sto-ven for most of his life. Larry testified that he lived with Stoven in Meridian and took care of him. He worked as a cook at a hospital four blocks away from home. He worked a swing shift four to five days per week from 5:30 a.m. to 2:30 p.m. or 10:30 a.m. to 7:00 p.m. Brown testified that she worked at a retail store and spent about twenty hours per week taking care of Stoven. Larry and Brown tried to arrange their work schedules so that one of them was available to care for Stoven. Larry admitted that he smoked cigarettes in the house and regularly consumed beer. Larry received a DUI in 2003. The GAL indicated that Stoven did not need round-the-clock care and that his living arrangement with Larry seemed to be working out. The GAL stated that Stoven had a very strong preference to remain in Meridian.

¶ 10. The chancellor found that, due to Stoven’s advanced age, physical incapacity, and mental weakness, he was incapable of managing his estate and also needed someone to be in charge and custody of his person. The court found that, though Larry had personal habits that could pose a risk to Stoven, the appointment of Larry as temporary conservator of his father’s person was in his best interest due to Larry’s prior care for Stoven without adverse consequences. The chancellor also recognized Stoven’s desire to stay in Meridian. The chancellor held that the temporary appointment was to continue and would be reviewed by the court after nine months upon motion of Jonathan or Larry. The court found that Jonathan would have a conflict of interest in serving as conservator of Stoven’s estate because he was indebted to the estate for the tax consequences from the transfers of the annuity. The court further found that Jonathan had not responsibly managed Stoven’s investments. Accordingly, the court appointed the GAL, Lester F. Williamson, as the conservator of Stoven’s estate.

STANDARD OF REVIEW

¶ 11. It is the chancellor’s job to resolve factual disputes. Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994). This Court will not disturb a chancellor’s findings of fact unless those findings are manifestly wrong or clearly erroneous, or where the chancellor applied an incorrect legal standard. In re Estate of Ladner, 909 So.2d 1051, 1054(¶ 6) (Miss.2004). We do not sit to re-weigh the evidence before the chancellor, but only to determine whether there was substantial, credible evidence supporting the chancellor’s findings such that the decision was not manifestly wrong or clearly erroneous. In re Estate of Carter, 912 So.2d 138, 143(¶ 18) (Miss.2005). The chancellor is in the best position to evaluate credibility of the witness testimony and it is not our “province to undermine the chancellor’s authority by replacing the chancellor’s judgment with our own.” Id.

LAW AND ANALYSIS

I. THE CHANCELLOR COMMITTED MANIFEST ERROR IN FINDING THAT JONATHAN L. COLE WAS NOT QUALIFIED TO SERVE AS CONSERVATOR OF THE ESTATE OF HIS FATHER, STOVEN COLE.

¶ 12. A conservator of the property of a ward “shall have the same duties, powers and responsibilities as the guardian of a minor, and all laws relative to the guardianship of a minor shall be applicable to a conservator.” Miss.Code Ann. § 93-13-259 (Rev.2004). The legal provisions concerning executors and administrators relating to settlement or disposition of property limitations are observed and enforced in all guardianships as far as applicable and not otherwise provided. Miss. Code Ann. § 93-13-38(1) (Rev.2004). “The guardian is empowered to collect and sue for and recover all debts due his said ward, and shall make payment of his debts out of the personal estate as executors and administrators discharge debts out of the estate of decedents-” Miss.Code Ann. § 93-13-38(2) (Rev.2004). In Mississippi, a person with a conflict of interest cannot serve as conservator of the estate. In re Conservator for Demoville, 856 So.2d 607, 611(¶ 17) (Miss.Ct.App.2003) (citing Jackson v. Jackson, 732 So.2d 916, 921(¶ 7) (Miss.1999)).

¶ 13. The chancellor found Jonathan unqualified to serve as conservator of the estate due to a conflict of interest because Jonathan was indebted to the estate for the taxes from the annuity transfers. The chancellor also declined to appoint Jonathan upon a finding he had mismanaged his parents’ settlement funds over which he had influence and control. Jonathan argues that there was no disqualifying conflict because the reason he had the funds transferred from Stoven’s name into his own name was to prevent Larry from dissipating the funds. He argues that the law should favor the appointment of a qualified family member and that the chancellor abused his discretion in appointing the GAL when he, a qualified family member, was available. Jonathan also points to Stoven’s giving him power of attorney in 1996 as proof Stoven was comfortable with Jonathan taking care of his assets, and to the GAL’s testimony that he would be comfortable with Jonathan being the conservator if it were shown that Sto-ven received all of the bonus money and if Jonathan took responsibility for the tax debt. Jonathan contends these two conditions were fulfilled.

¶ 14. The chancellor’s finding that there was a conflict of interest which disqualified Jonathan was not manifestly erroneous. While Jonathan’s testimony was evidence that, in transferring the annuity into his name, he acted with the good faith intention of protecting Stoven’s assets, by court order Jonathan is indebted to Stoven’s estate for the tax consequences of the transfers in the amounts of $34,627.36 and $48,814.01 and for the $5,000 which he used to pay his attorney. Therefore, Jonathan’s interests stand in opposition to those of the estate which he intends to administer. This conflict of interest was illuminated by Jonathan’s trial testimony in which he stated that, though he is indebted to the estate, he would be unwilling to sue himself to recover the funds owed.

¶ 15. Jonathan also argues that there was no evidence supporting the chancellor’s finding that he mismanaged his parents’ settlement funds. However, as Larry points out, it was Jonathan who arranged to place $100,000 in a safe-deposit box. The GAL stated that an accurate accounting of those funds was impossible because no written records were made of withdrawals. And, Jonathan indicated to the GAL that he accompanied his father to the box on August 24, 2004, and that there was $23,000 in the box. Jonathan told the GAL that he withdrew $20,000 with his father’s permission and placed it in a separate safe-deposit box in his name only. The GAL opined that Stoven lacked the ability to exercise clear business judgment and was easily led by whomever he met. These facts indicate potential overreaching by Jonathan. And, Jonathan used $5,000 of Stoven’s money for his own personal use in paying his attorney. Further, after receiving power of attorney for Stoven, Jonathan received “gifts” from Stoven in the amounts of $57,000 and $46,681.98. There was substantial evidence supporting the chancellor’s conclusion that Jonathan was guilty of mismanagement. The chancellor did not manifestly err in finding that Stoven’s best interest would be served by appointing Williamson rather than Jonathan as conservator of his estate. “The chancellor is the ultimate guardian of wards of the court.” Jackson, 732 So.2d at 920. This issue is without merit.

II. THE CHANCELLOR COMMITTED MANIFEST ERROR IN NOT APPOINTING JONATHAN L. COLE AS CONSERVATOR OF THE PERSON OF HIS FATHER.

¶ 16. Next, Jonathan argues that the chancellor erroneously appointed Larry instead of Jonathan as the temporary conservator of Stoven’s person. Jonathan contends that the chancellor manifestly erred because the evidence showed that Larry abused alcohol and smoked cigarettes in Stoven’s house, while Jonathan is a registered nurse who understands the care Stoven needs and can provide that care. Jonathan testified that he lived in Jackson, ran an herbal products business, and was searching for weekend nursing shifts. Jonathan testified that, if awarded the conservatorship, he would move Stoven to his home in Jackson. He would care for Stoven on weekdays and would hire Rosemary Powell, his employee in the herbal products business, to care for Stoven on weekends. Jonathan testified that he routinely authors written nursing care plans for patients in his work as a registered nurse. Jonathan testified that he had authored a nursing care plan for Stoven, which was admitted into evidence. The plan outlined Stoven’s health conditions, proposed a plan for managing each condition, and included supporting medical literature.

¶ 17. Jonathan contrasts his qualifications to be the conservator with Larry’s. The evidence established that Larry received a DUI in 2003. Larry testified that he was sentenced to alcohol abuse treatment and completed the treatment but continues to drink beer regularly. Larry stated that he consumes two to three beers per day and does not drink to intoxication. Photographs showing buckets of empty beer cans in Larry’s home and yard were admitted into evidence. Larry stated that he collected the empty cans to sell. Jonathan testified that Larry becomes belligerent when he has consumed alcohol excessively. Larry also testified that he smokes up to one pack of cigarettes per day. He stated that he does not smoke in Stoven’s bedroom but does smoke in his bedroom and on the porch. Jonathan testified that he witnessed Larry smoking in the living room where Stoven was watching television. Jonathan argues that Larry’s drinking hampers his ability to be a reliable caregiver for Stoven and that the secondhand smoke produced by Larry is detrimental to Stoven’s health.

¶ 18. The GAL testified that Stoven’s physician indicated that Stoven’s health problems were adequately controlled by his medication and that he did not need round-the-clock care. The GAL stated that Stoven was present at the hearing, was very aware of what was going on, and on multiple occasions including the day of the hearing had expressed a strong preference to stay in his home in Meridian. The GAL opined that, while Larry was “not perfect,” Larry was making a reasonable effort in caring for Stoven and would be an appropriate guardian unless or until Sto-ven’s condition worsened.

¶ 19. The chancellor’s opinion reveals that the chancellor considered the evidence of Larry’s alcohol abuse and cigarette smoking but found it to be outweighed by other concerns. The chancellor found:

Larry Cole has personal habits that could be an interruption in the care of his father and a risk to the personal health and welfare of his father. However, this Court finds that Larry Cole is qualified to serve as conservator of the person of his father because of his previous care of his father without any adverse consequences. Jonathan proposes to move Stoven Cole to Jackson, Mississippi to live in Jonathan’s four-bedroom home if he were appointed conservator of the person of Stoven Cole. Jonathan realizes that his father does not want to move out of his home in Meridian. Jonathan has arranged for an employee to care for his father while Jonathan is at work. The cost for this care was not developed. Larry proposes to continue to live in his father’s home with his father. This Court is concerned about Jonathan’s indifference to his father’s preference to live in his home in Meridian and this Court is concerned about Larry’s routine consumption of beer that could temporarily adversely affect his capability to care for his father. This court finds that it is in the best interest of Stoven Cole that he temporary [sic] continue to live in his home in Meridian, Mississippi. Mr. Stoven Cole is comfortable in his home and he prefers to live there. A move to Jackson, Mississippi, and a change in Mr. Stoven Cole’s environment might have adverse consequences.

The chancellor appointed Larry the temporary conservator of Stoven’s person with the appointment to be reviewed after nine months upon motion of Jonathan or Larry. It is apparent that, after considering and weighing all of the evidence, the chancellor believed that Stoven’s preferences and the prior success of his living arrangement with Larry outweighed the potential dangers posed by Larry’s personal habits. This determination was well within the chancellor’s discretion to make and was not manifestly erroneous. Notably, the chancellor deemed Larry’s appointment as conservator of Stoven’s person to be temporary and subject to later review. This issue is without merit.

III. THE CHANCELLOR COMMITTED REVERSIBLE ERROR IN SUSTAINING LARRY’S OBJECTION TO JONATHAN’S TESTIMONY ABOUT THE PROPER NURSING TREATMENT FOR HIS FATHER.

¶ 20. After Jonathan’s nursing care plan for Stoven was admitted into evidence, Jonathan attempted to testify about Stoven’s medical diagnoses and treatment. The trial court sustained an objection to hearsay, and Jonathan offered himself as an expert in the nursing care of Azheimer’s patients. Jonathan’s attorney began questioning him about his qualifications but then asked what plans Jonathan had made for the treatment of his father under the nursing care plan. Larry objected to Jonathan’s testimony as being cumulative of the nursing care plan itself. Then, Jonathan’s attorney asked him what an aneurysm was and what nursing treatment it required. Larry objected. The trial court excluded the testimony on the basis of hearsay because the testimony relied on a doctor’s opinion that Stoven had an aneurysm. Then, Jonathan proffered his testimony about the nursing care requirements for Stoven’s various medical diagnoses.

¶ 21. Jonathan argues that the trial court abused its discretion in excluding the proffered testimony about Stoven’s medical conditions. Our standard of review for the chancellor’s admission or exclusion of evidence is abuse of discretion. Stockstill v. Gammill, 943 So.2d 35, 44(¶ 18) (Miss.2006). Further, error may not be predicated on the erroneous exclusion of evidence unless the error affected a substantial right of a party. M.R.E. 103(a).

¶ 22. Jonathan contends that the trial court erred by excluding his testimony on the basis of hearsay because he was an expert witness in the field of nursing and, pursuant to Mississippi Rule of Evidence 703, he could testify about physicians’ diagnoses upon which he reasonably relied in forming opinions about Stoven’s illnesses. Indeed, Rule 703 provides that an expert witness may base an opinion or inference upon facts or data reasonably relied upon by experts in the field though the facts or data are not admissible in evidence. However, the trial court never accepted Jonathan as an expert witness in the field of nursing. M.R.E. 702. As Larry points out, Jonathan proceeded with his proffer without securing expert qualification. Therefore, Jonathan was a lay witness not subject to Rule 703 and there was no abuse of discretion in the trial court’s exclusion of his testimony on the basis of hearsay. Moreover, Jonathan suffered no prejudice from the exclusion of his proffered testimony because it was largely cumulative of the nursing care plan which was admitted into evidence. This issue is without merit.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.

      . There is no indication in the record that Jonathan or Larry moved for review of Larry’s temporary appointment.


author: KING, C.J.,

text:
    Tammy MAXWELL, Individually, and for and on behalf of the wrongful death Beneficiaries of Keith W. Maxwell, Deceased, Appellant. v. BAPTIST MEMORIAL HOSPITAL-DESOTO, INC., and Robert Shriner, M.D., Appellees.
    No. 2006-CA-00440-COA.
    Court of Appeals of Mississippi.
    June 5, 2007.

      Dana J. Swan, Clarksdale, attorney for appellant.
    Walter Alan Davis, Oxford, for Baptist Memorial Hospital-Desoto, Inc.
    S. Duke Goza, for Robert Schriner, M.D.
    Dion Jeffery Shanley, for Robert Schri-ner, M.D.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1 Tammy Maxwell, individually and for and on behalf of the wrongful death beneficiaries of Keith W. Maxwell, deceased appeals the trial court’s order granting summary judgment to Baptist Memorial Hospital-DeSoto, Inc. and Dr. Robert Schriner, M.D . The trial court held that Baptist-DeSoto and Schriner were entitled to summary judgment as a matter of law because Maxwell failed to present necessary expert testimony evidence regarding the standard of care and breach of that standard of care. Finding no error, this Court affirms.

FACTS

¶ 2 At the time of his death on June 4, 2001, Keith Maxwell was a forty-two year old male with a history of diabetes and obesity. His wife, Tammy Maxwell, testified in her deposition that Keith’s health problems forced him to quit work approximately six to eight months prior to his death. Specifically, Tammy testified that due to a lack of sleep caused by sleep apnea and pain in his legs which kept him from standing for long periods of time, Keith was no longer able to work. He spent most of his time sitting in a recliner and would occasionally help Tammy with the children who attended her in-home day care business.

¶ 3 Prior to June 1, 2001, Keith was under the care of Dr. Michael Edward Steuer and Dr. Winston Craig Clark for pain management. Despite a veritable cocktail of prescription pain medications, including Oxycontin, Keith was unable to keep his pain at a manageable level. His doctors determined that a “dorsal column stimulator” would assist Keith in controlling his pain and would help reduce the number of pain medications necessary for pain management. His doctors scheduled the outpatient procedure for June 1, 2001.

¶ 4 Dr. Clark performed the outpatient procedure on June 1, 2001 at Baptist Memorial Hospital-DeSoto. Following the surgery, Dr. Clark referred Keith to Dr. Steuer for pain management. Among the other medications that Dr. Steuer prescribed was a dosage of 160 mg. of Oxycontin to be given every twelve hours. The nursing staff at Baptist-DeSoto misread the order, and Keith received four doses of Oxycontin, totaling 640 mg., within a seven-hour period. According to the toxicology report completed as part of Keith’s autopsy, more than 200 mg. is considered toxic.

¶ 5 As a result of the overdose, Keith became lethargic and began experiencing difficulty breathing. The staff at Baptist-DeSoto contacted Dr. Robert Schriner, the pulmonologist on call, at approximately 9:25 a.m. on June 2, 2001. Dr. Schriner was completing rounds at Baptist East hospital at the time and was not on campus at Baptist-DeSoto. After being fully briefed on the situation, including the results of an arterial blood gas test, Dr. Schriner ordered a standard dosage of Narcan, to be administered intravenously, and a breathing treatment to open up Keith’s airways and allow him to breathe more deeply. Dr. Schriner also ordered a follow-up arterial blood gas test to compare with the first so that he could determine whether the current course of treatment was working to reverse the overdose of Oxycontin.

¶ 6 Dr. Schriner received a follow-up call from the Baptist-DeSoto staff at 10:40 a.m. The nurse informed Dr. Schriner that the patient was improving significantly and that the follow-up arterial blood gas test indicated that Keith’s oxygen level had more than doubled.

¶ 7 Dr. Schriner met with Keith around 2:30 p.m. for an examination. Dr. Schri-ner testified in his deposition that Keith was “stable from a respiratory standpoint.” Keith was complaining about muscle spasms and pain in his back. Dr. Schriner cautioned against the use of additional narcotics, given the recent Oxycontin overdose. Dr. Schriner did not order additional doses of Narcan following the examination because Keith “was felt to be back to his baseline status both respiratory and mental status-wise.” The hospital records also reflect that by 8:00 p.m. on June 2, 2001, Keith was alert and oriented and his respiration was “even and unla-bored.”

¶ 8 Keith was released from the hospital on June 3, 2001. At the time of his discharge, the hospital records indicate that he was alert and able to provide for his own self-care. Tammy testified in her deposition that Keith called her the morning of June 3 and told her that he was being discharged. She further testified that after he arrived home from the hospital, Keith watched a movie, ate dinner, and went to bed early because he was tired. Keith had complained of pain, and after a phone call to Dr. Friedman, obtained a prescription for Tylenol 3. Tammy picked up the prescription and administered one dose to Keith. She also stated that the next morning, Keith woke early and asked for breakfast. She helped him in and out of the shower. He then told her that he was nauseous and tired and requested that she keep his breakfast warm so that he could eat later. He also told her that she should run errands while he took a nap. Tammy testified that she paid the electric bill and picked up a few things at a store before calling to check on Keith. When he did not answer the phone at home, she drove home to check on him and found him dead.

¶ 9 The state medical examiner performed an autopsy. The toxicology report conducted as part of the autopsy revealed that Keith had 770 mg of Oxycontin in his system at the time of his death. Tammy testified that she had not given Keith any Oxycontin since his release from the hospital. During oral argument, however, counsel for Tammy admitted that Keith obviously took some unknown amount of Oxycontin after his discharge from the hospital.

PROCEDURAL HISTORY

¶ 10 Tammy subsequently brought suit against Baptist-DeSoto, Dr. Steuer, Dr. Clark, Dr. Friedman, Dr. Schriner, and John Does 1-10. Her complaint alleged gross negligence, res ipsa loquitor, and breach of contract. According to the docket sheet, Drs. Steuer, Clark, and Friedman were dismissed at various times throughout the proceedings in the trial court.

¶ 11 Following discovery, both Baptist-DeSoto and Dr. Schriner submitted motions for summary judgment. The trial court granted Baptist-DeSoto’s motion for summary judgment. Following a motion for reconsideration, the trial court entered an order granting summary judgment to both Baptist-DeSoto and Dr. Schriner. In that order, the trial court held that “[t]he Plaintiffs must put forth expert testimony” to establish the applicable standard of care, breach of that standard of care, causation, and damages.

¶ 12 With regard to expert testimony, the trial court held that Tammy submitted only the written opinion of Dr. Stephen Hayne, the medical examiner who conducted the autopsy on Keith. The trial court identified several problems with his written opinion. First, this opinion was drafted by counsel for Tammy. Dr. Hayne did acknowledge the opinion in his deposition testimony and did testify that he adopted the contents of that written opinion; however, the opinion was not submitted in affidavit form, nor was it sworn. Additionally, Dr. Hayne clearly testified that he was a fact expert witness only and had not been retained by the plaintiffs as an expert witness because he chose not to be. Despite the deficiencies in form, however, the trial court considered the opinion testimony. The trial court concluded that Dr. Hayne’s opinion testimony failed to “define the standard of care and who breached it and how it was breached.” Moreover, the trial court noted that Dr. Hayne gave his personal opinion and refused to opine on the generally accepted standards of care applicable to the case.

¶ 13 The trial court held that Dr. Hayne’s opinion was insufficient to create a genuine issue of material fact. The trial court further held that, as a matter of law, Baptist-DeSoto and Dr. Schriner were entitled to summary judgment. Tammy timely appealed.

STANDARD OF REVIEW

¶ 14 Under Mississippi Rule of Civil Procedure 56(c), summary judgment is granted to a party when “the pleadings, depositions, answers to interrogatories and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). This Court reviews a trial court’s order granting summary judgment under the de novo standard of review. See Saucier ex rel. Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351, 1354 (¶ 10) (Miss.1998). The Court “must examine all the evidentiary matters before [it].” Monsanto Co. v. Hall, 912 So.2d 134, 135 (¶ 5) (Miss.2005). The burden is on the moving party to establish that there is no material issue of fact, and the evidence must be viewed in the light most favorable to the non-moving party. See Hartford Ins. Co. v. Sheffield, 808 So.2d 891, 895 (¶ 11) (Miss.2001).

ANALYSIS

¶ 15 On appeal, Tammy raises two issues in arguing that the trial court erred in granting summary judgment to Baptist-DeSoto and Dr. Schriner. First, Tammy argues that the trial court failed to consider the expert report and deposition testimony of Dr. Hayne. Second, she argues that the report and testimony created a material issue of fact that precluded summary judgment.

I. The trial court’s consideration of Dr. Hayne’s report and testimony

¶ 16 Tammy argues that the trial court failed to consider Dr. Hayne’s report and testimony. Both Baptist-DeSoto and Dr. Schriner argue that proeedurally, Dr. Hayne’s opinion was not presented in the proper format. Specifically, Dr. Hayne’s opinion consisted of an unsigned report prepared by Tammy’s counsel and Dr. Hayne’s deposition testimony that he adopted the findings contained in that report. In its order, the trial court notes that Dr. Hayne’s opinion “is not in affidavit form and not sworn.” Following that statement, however, the trial court proceeded to consider the evidentiary value of Dr. Hayne’s opinion.

¶ 17 Because this Court finds that the trial court considered Dr. Hayne’s report and testimony, despite the procedural irregularities, the Court holds that this issue is without merit.

II. The value of Dr. Hayne’s report and testimony

¶ 18 Tammy’s theory of the case appears to be that Baptist — DeSoto’s nursing staff, by administering improper doses of Oxycontin, failed to provide the proper standard of care, thereby contributing to Keith’s death. With regard to Dr. Schriner, Tammy contends that Dr. Schriner breached the applicable standard of care by failing to conduct a baseline test that would have established the amount of Oxycontin in Keith’s system. She further argues that because of his failure to order the baseline test, Dr. Schriner’s treatment of Keith, which was conducted using the clinical recommendations, constituted a breach of duty that caused Keith’s death.

¶ 19 In their motions for summary judgment, both Baptist-DeSoto and Dr. Schri-ner argued that Tammy failed to provide expert testimony regarding the applicable standard of care and the manner in which Baptist-DeSoto and Dr. Schriner breached that standard of care. Substantively, Baptist-DeSoto and Dr. Schriner argue that Dr. Hayne’s opinion constitutes his personal opinion only and not the expert opinion required for medical malpractice cases. They contend that Dr. Hayne’s personal opinion is insufficient to establish evidence of the duty owed to Keith, the manner in which that duty was breached, and causation.

¶ 20 Expert testimony plays a significant role in medical malpractice cases because “[a]bsent error so obvious that a layman could easily determine fault, expert testimony is generally required to survive summary judgment and establish the negligence of a physician.” Sheffield v. Goodwin, 740 So.2d 854, 856 (¶ 6) (Miss.1999). Generally, a plaintiff cannot prevail in a medical malpractice action without establishing, “by expert testimony, the standard of acceptable professional practice; that the defendant physician deviated from that standard; and that the deviation from the standard of acceptable professional practice was the proximate cause of the injury of which plaintiff complains.” Brown v. Baptist Mem’l Hosp.-DeSoto, Inc., 806 So.2d 1131, 1134 (¶ 10) (Miss.2002) (citation omitted). See also Cheeks v. Bio-Medical Applications, Inc., 908 So.2d 117, 120 (¶ 8) (Miss.2005) (citations omitted); Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990).

¶ 21 Arguably, it is possible that establishing the duty and breach of duty with regard to Baptist-DeSoto does not require expert testimony. In this case, Tammy argues that Baptist-DeSoto is responsible for her husband’s death because the nursing staff administered an overdose of Oxycontin to Keith in violation of the treating physician’s orders. Certainly, a lay person could understand, without benefit of expert testimony, that a hospital’s nursing staff has a duty to read a patient’s chart carefully and to follow the care instructions on that chart. Additionally, the actual administration of 640 mg. of Oxycontin within a seven-hour period, as opposed to the recommended administration of 160 mg. of Oxycontin every twelve hours, is evidence that establishes a breach of duty in a manner that does not require expert testimony.

¶ 22 Under Tammy’s theory of the case, however, expert testimony would be necessary to establish causation because the hospital was able, through Dr. Schriner’s intervention, to resolve the overdose. Tammy fails to show how the nursing staffs error on June 1, 2001, caused her husband to die of an Oxycontin overdose three days later on June 4, 2001, when he was alert and oriented as early as 8:30 p.m. on June 2, 2001, and at the time of his discharge on June 3, 2001. Expert testimony would have been necessary to establish causation because the evidence, including Tammy’s own deposition testimony, indicated that Keith recovered from the overdose after Dr. Schriner treated him.

¶ 23 With regard to Dr. Schriner, however, expert testimony would be necessary to establish duty, breach of duty, and causation. Tammy’s theory of the case was that by failing to order baseline testing at the time Dr. Schriner began treating Keith, Dr. Schriner violated the applicable standard of care. She further argued that Dr. Schriner’s care was deficient because he followed clinical recommendations regarding the proper dosage of Narcan to treat the Oxycontin overdose rather than establishing the perimeters for treatment by a baseline test that tracked Keith’s individual reaction to the overdose. Without expert testimony explaining the necessity of such a test so that it created a duty, under the circumstances and taking into account the facilities available to Dr. Schri-ner at the time of treatment, it would not be clear to a jury that Dr. Schriner owed such a duty or that he breached that duty. Additionally, expert testimony would be necessary to establish causation, as the evidence indicates that Keith responded quickly and positively to Dr. Schriner’s treatment.

¶ 24 The parameters that define a physician’s duty generally are well established and are stated as follows:

given the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat through maximum reasonable medical recovery, each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment and options.

Hall v. Hilbun, 466 So.2d 856, 873 (Miss.1985). This standard is an objective standard. Accordingly, an expert must articulate the standard of care that should have been applied in a particular case as an objective standard in order to establish the duty owed to the patient.

¶ 25 In the case sub judice, Dr. Hayne stated in his deposition testimony that he was participating in this case as an expert fact witness only. He clearly articulated that he was not testifying as an expert witness and that he had not been retained by Tammy as an expert because he chose not to be. When questioned repeatedly about the standard of care, Dr. Hayne framed his answers subjectively, answering the question in terms of what he would do as the physician in that particular situation. At no time in his deposition testimony or in the “report” that he adopted in his deposition testimony did Dr. Hayne articulate an objective standard, either for Baptist-DeSoto or for Dr. Schriner.

¶ 26 Because Dr. Hayne’s “report” and deposition testimony are not objective, the trial court correctly concluded that Dr. Hayne’s testimony did not sufficiently establish the duty owed, breach of that duty, or causation for either Baptist-DeSoto or Dr. Schriner. Tammy presented no other expert testimony. Accordingly, her claims fail as a matter of law, and the trial court properly granted summary judgment to both Baptis1>-DeSoto and Dr. Schriner. See Sheffield, 740 So.2d at 856 (¶ 6).

¶ 27 THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . The complaint spells the doctor’s last name as "Shriner.” The correct spelling, however, is "Schriner.”

      . Dr. Clark was dismissed as a result of the entry of an agreed order dated March 6, 2003. The docket entry indicates that Dr. Friedman was dismissed without prejudice on July 30, 2003, but the docket does not indicate that Tammy ever amended her complaint to add him as a defendant. Dr. Steuer was dismissed with prejudice on May 10, 2005.