author: COBB, Presiding Justice, for the Court. DICKINSON, Justice, DIAZ, Justice,

text:
    In the Interest of D.S.
    No. 2005-CA-01381-SCT.
    Supreme Court of Mississippi.
    Dec. 7, 2006.
    Darnell Felton, attorney for appellant.
    C. Kent Haney, Clarksdale, attorney for appellee.
    Before COBB, P.J., CARLSON and DICKINSON, JJ.
   COBB, Presiding Justice, for the Court.

¶ 1. This appeal comes from the dismissal of a petition charging D.S., a minor, with delinquency. The Coahoma County Youth Court, presided over by special judge Mills E. Barbee, appointed to hear the case due to the recusal of the regular youth court judge, concluded the youth court was without exclusive original jurisdiction to proceed on the charge filed against D.S. and dismissed without further elaboration. On appeal D.S. asserts that the judgment was erroneous because the charge filed against him, pursuant to the statutory rape statute, Miss.Code Ann. Section 97-3-65 (Rev. 2006), excludes a life sentence for individuals under eighteen years of age, and therefore the youth court did have exclusive original jurisdiction. This argument is contrary to established precedent, and thus we affirm the youth court’s decision.

FACTS

¶ 2. D.S., then sixteen years of age, was arrested on April 2, 2003, and charged with fondling J.M., a three-year-old female. Clarksdale Police Investigator Robbie Linley contacted the youth court judge who instructed him to release D.S. into the custody of his mother and to issue an intake date. Following those instructions, an intake proceeding was scheduled for April 7, 2003. D.S., his mother and father met with the intake counselor, Trip Webster, on that date. However, for reasons not provided in the record, the matter then was dormant for one and half years.

¶ 3. On November 30, 2004, a Coahoma County grand jury indicted D.S. for “unlawfully, wilfully and feloniously engaging] in sexual penetration with [J.M.], a female child under the age of fourteen (14) years and [D.S.] was twenty-four (24) months older than [J.M].” The title, at the top of the indictment, was titled “Sexual Battery MCA Section 97-3-95(l)(d).” On December 7, 2004, D.S. filed a Motion to Dismiss and Transfer in the Coahoma County Circuit Court, seeking to return the matter to the youth court. Other than the indictment, the only part of the circuit court record is contained in the record before this Court is the detailed Order of the Circuit Judge, in which he concluded that “[t]his Court will dismiss without prejudice in the Circuit Court and transfer the entire cause to the Youth Court of Coahoma County, Mississippi, for such appropriate proceedings as the Youth Court might determine to be appropriate.” He further ordered that the documents be sent to the Youth Court, and all records of the Circuit Court should be expunged.

¶ 4. On February 1, 2005, the Youth Court prosecutor filed a two-paragraph Petition which stated that D.S. was a delinquent child within the’ meaning of the Youth Court Act, in that he “did willfully, unlawfully and feloniously commit sexual battery on J.M, a child under the age of 14 and 24 months younger than D.S., in violation of Section 97 — 3—65(l)(b)[sic] of the Mississippi Code Annotated.” Simultaneously, a one-sentence Motion to Transfer back to the circuit court was filed against D.S. in youth court.

¶ 5. The youth court heard brief initial testimony and arguments on the petition and motion to transfer on February 18, 2005, after the judge announced that he needed additional time for research in light of his concerns about “these charges and about the circumstances surrounding this Petition.” Since the parties and witnesses were present, their testimony was heard. Officer Linley testified with regard to the arrest and his call to the youth court judge. His copy of the juvenile arrest report, which reflected the charge of fondling and the scheduling of the intake meeting, was admitted without objection. The youth court file also contained the court’s copy of the report upon which handwritten notes were jotted in several places. D.S.’s mother testified that D.S. had been released into her custody, and that she, her husband, and D.S. met with youth court counselor Trip Webster three or four days after the arrest, although she could not remember the exact date. There were no questions asked of her about the specifics of that meeting. D.S.’s father was also present to testify, but the attorneys stipulated that his testimony would be substantially similar to hers. At that point, the prosecutor advised the court that he would like to talk with Webster, and since he was no longer in the area, would try to call him to find out more about the alleged meeting. The court agreed, and asked the prosecutor to advise counsel opposite as to what he learned, and he would then return to hear the case.

¶ 6. The hearing was reconvened on June 8, 2005, at which time the court announced that the issue of whether the youth court has jurisdiction would be addressed before briefs were submitted. He then recited and explained the statutes he found to be applicable, and concluded “[i]t seems to me the Circuit Court would have jurisdiction of the offense and then be guided by the punishment only if the person who is convicted is age 13 to 15[sic] is not in this jurisdiction.” He then allowed the attorneys to proceed with their argument in response to his position. D.S.’s Motion to Dismiss and Transfer and the indictment, both from the Circuit Court hearing, were admitted into the youth court record. On June 28, 2005, the youth court entered its order, finding that the petition “is hereby dismissed for the lack of exclusive original jurisdiction.” It was silent as to any further proceedings.

ANALYSIS

¶ 7. In reviewing questions of law, this Court proceeds de novo. Sykes v. State, 757 So.2d 997, 999 (Miss.2000) (citing Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss.1998); Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)). The first question this Court must consider is under which criminal statute, sexual battery or statutory rape, the analysis should be performed. The petition, briefs and order of the youth court state that D.S. committed sexual battery, although the petition cited the statutory rape statute, Miss.Code Ann. § 97 — 3—65(l)(b) The earlier circuit court indictment was clearly brought under the sexual battery statute, Miss.Code Ann. § 97 — 3—95(l)(d).

¶ 8. The youth court addressed this issue in his order, stating:

The Youth Court Prosecutor alleged [D.S.] to be a delinquent child as defined by the Mississippi Youth Court Act alleging that “on or about the 2nd day of April, 2003, [D.S.] did willfully, unlawfully and feloniously commit sexual battery on J.M., a child under the age of 14 and 24 months younger than [D.S.] in violation of Section 97 — 3—65(l)(b) of the Mississippi Code Annotated.” That statute charges statutory rape. And, although the charge in the Petition herein alleges the act of sexual battery in violation of the statutory rape penal code section, there is no issue before the Court thereon.

Since neither party raised the discrepancy in their briefs and it does not ultimately affect the outcome, we proceed under Miss.Code.Ann. Section 97 — 3—65(l)(b) (statutory rape).

¶ 9. Where the youth court has exclusive original jurisdiction, juveniles may not be tried as adults in circuit court unless the youth court, in its own discretion, decides to “transfer jurisdiction of the alleged offense or a lesser included offense to the criminal court which would have trial jurisdiction of such offense if committed by an adult.” Blue v. State, 674 So.2d 1184, 1230 (Miss.1996), overruled, on other grounds, by King v. State, 784 So.2d 884 (Miss.2001). By statute the youth court has exclusive original jurisdiction as follows:

(1) 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 in the following circumstances: (a) Any act attempted or committed by a child, which if committed by an adult would be punishable under state or federal law by life imprisonment or death, will be in the original jurisdiction of the circuit court.

Miss.Code Ann. Section 43-21-151 (emphasis added). This Court has long recognized that “when a juvenile is charged with an offense carrying a potential life sentence, such as rape or murder, jurisdiction is vested exclusively in the circuit court and the Youth Court Act is inapplicable.” Smith v. State, 534 So.2d 194, 196 (Miss.1988), citing Johnson v. State, 512 So.2d 1246, 1250 (Miss.1987). See also Winters v. State, 473 So.2d 452 (Miss.1985). Therefore, the determinative question is whether an adult, could possibly be sentenced to life in prison for committing the act allegedly committed by D.S.

¶ 10. The sentences to which a person is exposed, if convicted under section (l)(b) of the rape of a child who is under age 14, and is 24 months younger than the person, are codified in Miss.Code Ann. Section 97 — 3—65(3)(c) & (d), which provides:

(c) If eighteen (18) years of age or older and convicted under paragraph (l)(b) of this section, to imprisonment for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years.
(d) If thirteen (13) years of age or older but under eighteen (18) years of age and convicted under (l)(a) or (l)(b) of this section, such imprisonment, fíne or other sentence as the court, in its discretion, may determine.

In sentencing a criminal defendant, their age at the time the crime was committed is used, not their age at the time of trial. Foster v. State, 639 So.2d 1263, 1293 (Miss.1994). Therefore, when the trial court sentences an individual who is under the age of eighteen but older than thirteen for violation of. Miss.Code Ann. 97-3-65(l)(b), the court would use Miss.Code Ann. 97-3-65(3)(d). However, this is not the same provision which vests jurisdiction.

¶ 11. The only determination necessary to vest original jurisdiction over a juvenile in the circuit court is whether an adult who committed the same offense would be exposed to death or life imprisonment. The potential life sentence is the determinative factor. The actual sentence imposed by the trial court is irrelevant. Johnson, 512 So.2d at 1250, citing Williams v. State, 459 So.2d 777 (Miss.1984) (once jurisdiction is acquired it cannot be lost by the punishment imposed on the juvenile). In the present case the relevant sentencing provision is Miss.Code Ann. 97-3-65(3)(c) which clearly provides for the possibility of life imprisonment for an adult found guilty of statutory rape. The same analysis and determination is true for sexual battery cases brought under section 97 — 3—95(l)(d) and sentenced under section 97 — 3—101(4). Therefore, we conclude that the Coahoma County youth court was correct in simply dismissing the petition before it for lack of exclusive original jurisdiction of the charge filed against D.S.

CONCLUSION

¶ 12.. The youth court lacked jurisdiction over D.S. because he was charged with statutory rape, which if committed by an adult carries the possibility of sentencing to life imprisonment. The actual sentence D.S. might eventually receive because of his age is irrelevant. We affirm the youth court’s decision.

¶ 13. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY CARLSON, AND RANDOLPH, JJ„ CONCUR. DICKINSON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J., AND CARLSON, J. RANDOLPH, J., JOINS IN PART. DIAZ J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.

DICKINSON, Justice,

Dissenting:

¶ 14. My view is that the majority has arrived at the right result without providing a complete analysis of the relevant statutes, leaving the incorrect impression that the circuit judge had no authority to transfer this case to the youth court. The circuit judge, relying on Miss.Code Ann. Section 43-21-159 (Rev.2006), transferred this case to youth court. The statute states:

(1) When a person appears before a court other than the youth court, and it is determined that the person is a child under jurisdiction of the youth court, such court shall, unless the jurisdiction of the offense has been transferred to such court as provided in this chapter, or unless the child has previously been the subject of a transfer from the youth court to the circuit court for trial as an adult and was convicted, immediately dismiss the proceeding without prejudice and forward all documents pertaining to the cause to the youth court.

¶ 15. As the majority explains, the judge’s order stated that “[t]his Court will dismiss without prejudice in the Circuit Court and transfer the entire cause to the Youth Court of Coahoma County, Mississippi, for such appropriate proceedings as the Youth Court might determine to be appropriate.” The judge further ordered all documents be sent to the youth court and records of the circuit court be expunged.

¶ 16. However, the judge ignored Section 43-21-159(3) which provides; “[n]oth-ing in subsection (1) or (2) shall apply to a youth who has a pending charge or a conviction for any crime over which circuit court has original jurisdiction.” (Emphasis added). Because of this provision, subsection (1) did not apply. The majority correctly concludes that the circuit court has original jurisdiction over D.S. for the specific charges of sexual battery or statutory rape in this case, and that the circuit judge improperly transferred the case based on language found in Section 43-21-159(1) and (3).

¶ 17. My concern is that the majority leaves the incorrect impression that the circuit judge had no authority to transfer the case. The circuit judge could have transferred the case to youth court under subsection (4) of Section 43-21-159, which requires a specific finding that such transfer was in the best interests of D.S. and in the interest of justice. The relevant subsection provides:

(4) In any case wherein the defendant is a child as defined in this chapter and of which the circuit court has original jurisdiction, the circuit judge, upon a finding that it would he in the best interest of such child and in the interest of justice, may at any stage of the proceedings prior to the attachment of jeopardy transfer such proceedings to the youth court for further proceedings unless the child has previously been the subject of a transfer from the youth court to the circuit court for trial as an adult and was convicted or has previously been convicted of a crime which was in original circuit court jurisdiction, and the youth court shall, upon acquiring jurisdiction, proceed as provided in this chapter for the adjudication and disposition of delinquent child proceeding proceedings.

Miss.Code Ann. § 43-21-159(4) (emphasis added). However, because no such finding was made or even implied by the circuit judge, the transfer was improper.

f 18. I believe the above clarification of the requirements of the individual subsections of Miss.Code Ann. Section 43-21-159 is necessary to prevent the mistaken impression that a circuit judge has no authority to transfer such cases to the youth court. Because the majority overlooks this analysis, I provide this concurring opinion.

WALLER, P.J., AND CARLSON, J., ' JOIN THIS OPINION. RANDOLPH, J„ JOINS THIS OPINION IN PART.

DIAZ, Justice,

Dissenting:

¶ 19. Because jurisdiction was properly vested in the youth court after transfer from the circuit court and because youth courts have original jurisdiction over minors charged with statutory rape, I must respectfully dissent.

¶ 20. For clarification, the facts are as follows: D.S. was arrested and charged in youth court with fondling on April 2, 2003. However, the youth court prosecutor never brought a delinquency petition on this charge. Nineteen months later, the district attorney brought another case against D.S. for the same incident in circuit court, but for sexual battery. The circuit court then transferred the sexual battery case to youth court. After transfer, the youth prosecutor filed a petition charging D.S. with a third crime, statutory rape. The youth court subsequently dismissed the case on the grounds that it did “not have jurisdiction of the charge.”

¶ 21. Three different charges have been brought against D.S., and it has now been three and a half years since the defendant was first arrested. Unfortunately, the record is incomplete, making it nearly impossible to unscramble this procedural debacle. At the youth court hearing on the statutory rape charge, D.S. presented evidence that a youth court judge had disposed of the ease. The youth court prosecutor disputed this claim but presented no evidence in support. There is no order in the record addressing the fondling charges as required by Miss.Code Ann. § 43-21-357. Additionally, there is no evidence that the youth court held a transfer hearing on the original charges. Because the charges were originally brought in youth court, Miss.Code Ann. § 43-21-157 requires a bifurcated transfer hearing before a juvenile may be tried in circuit court. See Buck v. State, 838 So.2d 256, 259-60 (Miss.2003) (youth court could not transfer case to circuit court without bifurcated hearing and specific statutory findings under Section 43-21-157).

¶22. Also of note is the State’s reluctance to participate in appeal of the matter. Our ease law permits the State to appeal a decision to transfer a case from circuit court to youth court. State v. U.G., 726 So.2d 151 (Miss.1998). No such appeal was filed after the transfer order from the circuit court. Additionally, the record contains correspondence between the youth prosecutor and the Attorney General’s office indicating that the youth prosecutor was unwilling to handle the appeal. A December 6, 2005, letter from the Attorney General’s office to the prosecutor, demanding the prosecutor craft the appeal, states, “you were of the opinion that appellate work is neither a statutory mandate nor a part of the Youth Court Prosecutor’s job description and that the Office of the Attorney General should handle the youth court appellate work.” Again, on February 27, 2006, the Office of the Attorney General wrote, “[y]ou also stated during our October 28, 2005 phone conversation, ‘... that if the Attorney General’s office doesn’t handle the appeal then it just ain’t going to get done because I’m not doing it.’ ” Finally, after the Supreme Court Clerk entered a show cause notice against the youth prosecutor for failure to file a brief, the prosecutor filed a meager two and a half page brief, with only one page devoted to legal arguments.

I. THE CASE WAS PROPERLY TRANSFERRED TO YOUTH COURT.

¶ 23. The majority holds that the circuit court had original jurisdiction, but original does not mean exclusive. Even if the circuit court has original jurisdiction over juveniles charged with statutory rape, a youth court may not refuse to hear a case transferred from the circuit court. The statute clearly states, “the youth court shall, upon acquiring jurisdiction, proceed as provided in this chapter for the adjudication and disposition of delinquent child proceeding proceedings.” Miss.Code Ann. § 43-21-159. “Simply stated, ‘shall’ is mandatory.” Pitalo v. GPCH-GP, Inc., 933 So.2d 927, 929 (Miss.2006) (citing Franklin v. Franklin, 858 So.2d 110, 114 (Miss.2003)).

¶ 24. Once the circuit court order was entered, the youth court had acquired jurisdiction over the case. As a court of lesser jurisdiction, a youth court does not have discretion to dismiss a case once it has been transferred to its jurisdiction by a circuit court. See Helmert v. Biffany, 842 So.2d 1287, 1290 (Miss.2003) (both chancery and youth courts have jurisdiction over the adjudication of minors, however, youth court jurisdiction is limited to specifically delineated matters); Griffin v. Bell, 215 So.2d 573, 575 (Miss.1968) (“The youth court is a court of statutory and limited jurisdiction.”). Accordingly, the youth court erred in dismissing this case.

II. THE YOUTH COURT HAS ORIGINAL JURISDICTION.

¶ 25. The majority incorrectly finds that circuit courts have original jurisdiction over juveniles charged with statutory rape. This is a case of first impression as this Court has never determined whether circuit courts have original jurisdiction over juveniles charged with sex crimes after the 1989 amendment to the Youth Court Act. The first version of the statute conferring original jurisdiction upon the circuit court read: “the circuit court shall have exclusive jurisdiction of such child if he be charged with any crime which, upon conviction, is punishable by life imprisonment or death.” Miss.Code Ann. § 43-21-31 (1972) (emphasis supplied). In 1989, the Legislature amended the jurisdictional statute to state that the circuit court has original jurisdiction where “any act attempted or committed by a child, which if committed by an adult would be punishable under state or federal law by life imprisonment or death, will be in the original jurisdiction of the circuit court.” Miss. Code Ann. § 43-21-151 (1989) (emphasis supplied).

¶ 26. This amendment came immediately after the United States Supreme Court held that it was a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment to sentence juveniles under the age of sixteen to death. Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988). In light of the Thompson decision, it made sense for the Legislature to amend the jurisdictional statute. In doing so, however, an ambiguity arose with regard to juveniles charged with sex crimes.

¶ 27. Sex crimes are unique in that the Legislature has specifically delineated separate levels of punishment depending on the defendant’s age. Miss Code Ann. §§ 97-3-101 and 97-3-65. While adults may receive up to life imprisonment, the Legislature has left it up to the court’s discretion to determine the appropriate punishment for juveniles. However, if the circuit court has original jurisdiction over sex crimes involving juveniles, as the majority holds, then this discretion is rendered void. The code provides that where the circuit court has original jurisdiction, and the case is not transferred, then “the trial judge shall sentence the youth as though such youth was an adult.” Miss. Code Ann. § 43-21-159. Therefore, with regard to sex crimes, either the jurisdictional statute is valid, or the penal statutes are valid.

¶ 28. Because the jurisdictional statute is ambiguous with regard to sex crimes committed by juveniles, it is necessary to determine legislative intent. “Whether the statute is ambiguous, or not, the ultimate goal of this Court in interpreting a statute is to discern and give effect to the legislative intent.” City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992) (internal citations omitted).

¶ 29. First, the majority opinion overrules a Court of Appeals case on this very issue, yet it does so in a footnote claiming that the finding is “dicta.” The finding of the Court of Appeals was not dicta and was critical to the outcome: “[T]he circuit court had original jurisdiction over the kidnapping and capital murder charges, while the youth court had exclusive jurisdiction over the burglary and sexual battery charges.” Biggs v. State, 741 So.2d 318, 331-32 (Miss.Ct.App.1999) (emphasis supplied). Though not binding on this Court, the Biggs decision certainly constitutes persuasive precedent.

¶ 30. Second, “[a]ll doubt must be resolved in favor of the validity of a statute.” Univ. of Miss. Med. Ctr. v. Robinson, 876 So.2d 337, 339-40 (Miss.2004) (citing Loden v. Miss. Pub. Serv. Comm’n, 279 So.2d 636, 640 (Miss.1973)). “It is our duty to support a construction which would purge the legislative purpose of any invalidity, absurdity or unjust inequality.” City of Jackson v. Lakeland Lounge of Jackson, Inc., 688 So.2d 742, 747 (Miss.1996) (citing Robertson v. Tex. Oil Co., 141 Miss. 356, 362, 106 So. 449 (1925)). Read in pari materia with the penal statute, the jurisdictional statute should not apply to juveniles charged with sex crimes. Such an interpretation preserves the validity of both statutes as required by our rules of statutory interpretation.

¶ 31. Finally, this interpretation is consistent with this Court’s longstanding practice of interpreting criminal statutes in favor of the defendant. Murray v. State, 266 So.2d 139, 141 (Miss.1972) (citing Johns v. State, 255 So.2d 322 (Miss.1971); Berry v. State, 212 Miss. 164, 54 So.2d 222 (1951)). This is particularly important when the interests of juveniles are involved. Quite simply,

[T]he youth court is better situated to make decisions regarding the interest of the juvenile, as is reflected by the Legislature’s reference to the youth court within Miss.Code Ann. § 43 — 21—157(5); the circuit court does not have the facilities to evaluate juvenile interests. If the circuit court always makes the decision on whether a case should be transferred to the youth court, the role of the youth court is then severely diminished. In effect, the district attorney will be deciding whether a youthful offender will be prosecuted as an adult or a juvenile.

State v. U.G., 726 So.2d at 160 (McRae, J. dissenting, joined by Sullivan, P.J., & Banks, J.).

¶ 32. In light of the above, the interests of the child require that we err on the side of caution and interpret the statutes as giving original jurisdiction to youth courts. The legislature intended the court to use its discretion when determining punishment, and the youth court is best suited for this endeavor. The youth court may then make the appropriate determination under Miss.Code Ann. § 43-21-157 whether to transfer the case or retain jurisdiction.

¶ 33. For the foregoing reasons, I would reverse and remand for further proceedings in the youth court.

GRAVES, J., JOINS THIS OPINION.

      . The petition originally stated the sexual battery code section, but the numbers were marked through (without initials) and the handwritten statutory rape numbers were inserted, without any corresponding change in the name of the stated crime.

      . Although it is not discussed in either the youth court order or the circuit court order, we note that the original charge on the arrest report was fondling, which is yet another in the confusing assortment of "sex crimes” found in the Miss.Code. Apparently the circuit court had some testimony before it as to the details of D.S.'s actions against J.M., but all that we know from the court's order is that she was a three-year-old female.

      . This is the point at which the circuit court erred in its decision to transfer D.S.'s sexual battery case to the youth court. In its thorough and detailed order, the circuit court erred only in its finding that “a sentence of life imprisonment is only available if the perpetrator was over the age of eighteen (18) at the time of the alleged act”, relying on Biggs v. State, 741 So.2d 318 (Miss.Ct.App. 1999), which stated incorrectly, in dicta, "the youth court had exclusive jurisdiction over the burglary and sexual battery charges”, which implies that section (4) of the sexual battery penalty statute, on its face, is the only sentence which can be imposed on a person who shall be convicted of sexual battery who is thirteen (13) years of age or older but under eighteen (18) years of age.

      . (1) After receiving a report, the youth court intake unit shall promptly make a preliminary inquiry to determine whether the interest of the child, other children in the same environment or the public requires the youth court to take further action.... If it appears from the preliminary inquiry that the child or other children in the same environment are within the jurisdiction of the court, the youth court intake unit shall recommend to the youth court:
      (a) That the youth court take no action;
      (b) That an informal adjustment be made;
      (c) The Department of Human Services, Division of Family and Children Services, monitor the child, family and other children in the same environment;
      (d) That the child is warned or counseled informally; or
      (e) That a petition be filed.
      (2) The youth court shall then, without a hearing:
      (a) Order that no action be taken;
      (b) Order that an informal adjustment be made;
      (c) Order that the Department of Human Services, Division of Family and Children Sendees, monitor the child, family and other children in the same environment;
      (d) Order that the child is warned or counseled informally; or
      (e) Order that a petition be filed.
      Miss.Code Ann. § 43-21-357.

      . D.S. raised the issue of double jeopardy at the hearing and in his brief to this Court. In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court recognized that double jeopardy applied to youth court proceedings. Unfortunately, the record does not reveal the outcome of the original charges.


source: Caselaw Access Project

author: COBB, Presiding Justice, for the Court.

license: Public Domain

text:
    Ginger M. McSWAIN (Hartfield) v. Charles C. McSWAIN.
    No. 2004-CT-00088-SCT.
    Supreme Court of Mississippi.
    Dec. 14, 2006.

      William E. Andrews, III, Purvis, attorney for appellant.
    James R. Hayden, Hattiesburg, attorney for appellee.
   ON WRIT OF CERTIORARI

COBB, Presiding Justice, for the Court.

¶ 1. The Lamar County Chancery Court, in a hearing for modification of child custody, held that custody should be transferred from the mother, Ginger M. McSwain Hartfield to the father, Charles C. McSwain. The Court of Appeals reversed, finding that the chancellor had erred in considering Ginger’s past behavior and the possibility of future improvident behavior in determining whether there had been a material change in circumstances that had adversely affected their child, Miller McSwain. We hold that there was no abuse of discretion by the chancellor; and therefore, we reverse the judgment of the Court of Appeals and affirm the chancellor’s judgment.

FACTS AND CHANCERY COURT PROCEEDINGS

¶ 2. Charles and Ginger McSwain were married in 1997, and Miller was born in October, 1998. The couple filed for an irreconcilable differences divorce in April of 2000 in the Lamar County Chancery Court. In the settlement agreement, they agreed to joint legal custody of Miller with Ginger having primary physical custody. The judgment was final on September 14, 2000.

¶ 3. In February 2001, Ginger married Joe Hartfield. The trial evidence shows that the marriage was strained from the beginning. Hartfield and Ginger engaged in arguments and fights that sometimes erupted into physical violence as well. On at least one occasion, the violence rose to such a level that the police had to be called.

¶ 4. Hartfield testified that he believed Ginger’s actions to be the result of her alcoholism. He also spoke of Ginger’s problems with depression and the negative effect that her drinking had on her medication. On one occasion, Hartfield, frightened by Ginger’s actions, left with Miller and took him to the home of Hartfield’s mother.

¶ 5. In July 2002 Ginger began using cocaine with her neighbor, Ramona. Ginger admitted that by September, she and Ramona were using cocaine frequently. She also admitted that Miller would go with her to Ramona’s house when she was using cocaine, but she denied ever using cocaine “in front of him.” Ginger did admit to drinking a few times a week in front of Miller.

¶ 6. In late September of 2002, Ginger voluntarily admitted herself into the Joli-mar Wellness Institute (Jolimar) for drug and alcohol rehabilitation. Ginger, Hart-field, and Charles McSwain agreed privately that Charles would have physical possession of Miller for the duration of Ginger’s stay at Jolimar. On October 22, 2002, Ginger completed a 28-day primary care program at Jolimar, and then stayed in an extended care program which she completed on November 22, 2002. However, she attended the weekly aftercare program only until February, 2003, notwithstanding Jolimar’s discharge evaluation and aftercare recommendation that she attend aftercare groups for two years.

¶ 7. On November 5, 2002, before Ginger had completed her extended care program, Charles filed a petition for modification and emergency hearing without notice in the Lamar County Chancery Court, seeking permanent modification of child custody. On that day, the chancellor granted temporary physical custody of Miller to Charles in an ex parte emergency temporary order. On November 13, Ginger moved to set aside the temporary order, and the chancellor modified the temporary order to allow Ginger weekend visitation beginning November 15, 2002.

¶ 8. Between December 10, 2002, and January 31, 2003, the chancellor entered three additional temporary orders which increased Miller’s time with Ginger, on an alternating basis. The trial was set for March 12, 2003, but when a subpoenaed witness failed to appear, the matter was continued. Once again, the chancellor entered a temporary order regarding Miller, which alternated his physical possession between Charles and Ginger on a weekly basis until the date of trial.

¶ 9. The trial took place August 25 and 26, 2003. Final judgment was issued September 16, 2003, continuing joint legal custody, but transferring physical custody of Miller from Ginger to Charles, and granting “every reasonable visitation” to Ginger, albeit within a specific schedule. In support of his decision, the chancellor cited that Ginger is an admitted drug and alcohol addict who is currently on medication for depression. The chancellor found that Ginger has had suicidal thoughts and suffers from the usual negative feelings that accompany drug and alcohol abuse. It was also found that there is still friction between Ginger and Hartfield in their marriage. Ginger’s continued association with Ramona, the neighbor who had supplied Ginger with cocaine, was of particular concern to the chancellor.

¶ 10. The judgment also reflected the chancellor’s concerns that Ginger had not attended the suggested aftercare for her rehabilitation. Ginger’s counselor at Joli-mar testified that he believed Ginger would seek help if she lost control of her actions. The chancellor stated that Ginger’s past inability to control her actions would not make for a good circumstance for a child dependant on Ginger making important decisions.

¶ 11. Although it was recognized that Charles had been married four times and used alcohol regularly, the chancellor found that Charles had a more stable home environment. To support this position, the chancellor pointed out that Charles worked from his home, had a comfortable income and was currently in a stable marriage.

¶ 12. With these findings, the chancellor determined that there had been a material change in circumstances which had an adverse impact on Miller. The chancellor then tracked the factors set forth in Albright v. Albright, 437 So.2d 1003 (Miss. 1983), as he evaluated the facts and circumstances to determine whether it was in Miller’s best interest to remain in the custody of his mother, or whether it would be best for Miller to be in his father’s custody. The chancellor then awarded custody of Miller to Charles McSwain, giving Ginger reasonable visitation rights.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 13. On direct appeal, the Court of Appeals reversed and rendered with respect to the chancellor’s decision to modify custody of Miller, holding that the chancellor had abused his discretion by “foeus[ing] on the potential for future problems rather than the presently-existing circumstances of Miller’s home life.” McSwain v. McSwain, 944 So.2d 47, 52, 2005 WL 2979678, 2005 Miss.App. LEXIS 833 at ¶ 13 (Miss.Ct.App.2005).

ANALYSIS

I. Standard of Review

¶ 14. This Court laid out the standard for reviewing a chancellor’s decision in a child custody case in Mabus v. Mabus, 847 So.2d 815 (Miss.2003). “In a case disputing child custody, the chancellor’s findings will not be reversed unless manifestly wrong, clearly erroneous, or the proper legal standard was not applied.” Id. at 818.

II. Evidence of material change in circumstances

¶ 15. In a modification proceeding, the burden is on the non-custodial parent to prove by a preponderance of the evidence: “(1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Id. (citing Bubac v. Boston, 600 So.2d 951, 955 (Miss. 1992)).

¶ 16. The crux of the Court of Appeals’ analysis was that the material changes in circumstances in Miller’s home life that would have an adverse affect on Miller were not continuous and no longer existed at the time of the trial. “[T]he chancellor should find that the overall circumstances in which a child lives have materially changed and are likely to remain materially changed for the foreseeable future.” McSwain, 944 So.2d at 52, 2005 WL 2979678 at ¶ 12 (quoting Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)) (emphasis in original). The Court of Appeals stated that the chancellor abused his discretion because he focused on the potential for future problems rather than presently-existing circumstances and, because Ginger was drug and alcohol free at the time of the hearing, the material change in circumstances was not contemporaneous and could not mandate a change of custody. Id. at ¶ 13. The Court of Appeals went on to say that it appeared “that the chancellor mistakenly used past misconduct on Ginger’s part to trigger a re-weighing of the Albright factors.” Id. at ¶ 15.

¶ 17. This Court recently dealt with a very similar case in Johnson v. Gray, 859 So.2d 1006 (Miss.2003), where a mother (Johnson) appealed a chancellor’s order that custody of her child be transferred from her to her ex-husband, the child’s natural father (Gray). Johnson was an alcoholic, had at least one car accident where she was driving under the influence of alcohol, and even had an incident where she got into a fight with her boyfriend and knocked a window out of his truck. Id. at 1008-09. However, as in the case presently before the Court, Johnson sought treatment from a rehabilitation facility and was released prior the custody hearing in her case, and she was attending aftercare twice every week. Id. at 1014-15. She had also married, started attending church, and was building a home before the hearing. Id. Under the Court of Appeals’ reasoning, Johnson should have retained custody of her child. However, this Court upheld the chancellor’s decision to transfer custody from Johnson to Gray, stating that “hardly enough time” had passed “to determine if [Johnson] [would] be able to remain sober.” Id at 1015. This Court upheld the chancellor’s decision to use the possibility of a future relapse as a factor weighing against Johnson.

¶ 18. Here, the chancellor cited numerous reasons for his decision to modify custody of Miller. The factors considered included Ginger’s depression and the fact that she had suicidal thoughts. Ginger’s drug and alcohol addiction, her failure to attend aftercare, and the fact that Ginger still associates with her former drug partner also weighed heavily in the chancellor’s decision.

¶ 19. The Court of Appeals held that because Ginger was not using drugs or alcohol at the time of the hearing, Ginger’s addiction could not be considered a continuing change in circumstance. However, by Ginger’s own admission on the witness stand, she will always be an addict, and, as the chancellor mentioned in his judgment, she continues to suffer from the negative feelings that accompany an addiction. Ginger’s drug addiction transpired after the custody arrangement to which she and Charles agreed was incorporated into their irreconcilable differences divorce decree. It is most certainly a material change that adversely affects Miller, and because her drug addiction is something that Ginger will likely have to endure for years, if not the rest of her life, it continues. Ginger’s drug addiction satisfies the first two prongs of the test for modification of child custody.

¶ 20. Also cited by the chancellor was the discord in Ginger’s marriage with Joe Hartfield. The Court of Appeals stated that because the tension between Hart-field and Ginger at the time of trial “was not as fierce and contentious as it had previously been,” that the circumstances that might have mandated a change in custody had subsided. McSwain, 2005 WL 2979678 at ¶ 17. As discussed earlier, the fights that took place between Hart-field and Ginger were often extremely heated and very violent. These types of fights constituted a material change in circumstances that would adversely affect Miller.

¶ 21. Taken in the aggregate, the factors considered by the chancellor obviously constitute sufficient circumstances to warrant a change in custody would be in Miller’s best interests. The chancellor thoroughly examined the evidence and made a finding of fact using the Albright factors. He determined that Miller’s best interests would be served by a modification of the original custody agreement, and awarded custody of Miller to Charles McSwain. We find no error in this regard.

III. Modification of custody

¶ 22. This Court has been very clear about the amount of deference that chancellors are to receive in making a factual determination. “[W]e, as an appellate court, will affirm the decree if the record shows any ground upon which the decision my be justified ... We will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interest of the child.” Tucker, 453 So.2d at 1296 (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)). In the present case, there was sufficient evidence for the chancellor to find that a change of custody was in Miller’s best interest. A review of the record and the judgment reveals no manifest wrong, clear error, or improper legal analysis, and the ruling of the chancellor was reasonable under the facts.

CONCLUSION

¶ 23. Chancellors are in the best position to make a determination based on the facts presented to them at trial. In this case, the chancellor stated that Ginger was a good mother who made a bad choice. Unfortunately, the choices that Ginger made will affect her and her family for a very long time. The chancellor weighed the facts in this case and made a ruling based on those facts, and this Court will not second guess that ruling. Therefore, the judgment of the Court of Appeals is reversed, and the judgment of the Lamar County Chancery Court is affirmed.

¶ 24. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS REINSTATED AND AFFIRMED.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Ginger has remarried and taken the last name of her husband, Joe Hartfield.

      . Although it is a phrase commonly used by lawyers and judges, there is no provision under Miss.Code Ann. Section 93-5-24 for '‘primary'' physical custody. That section sets forth the various combinations of physical and legal custody, but with regard to physical custody, it only provides for joint physical custody, and physical custody in one parent or another. See Rush v. Rush, 932 So.2d 794, 796 (Miss.2006).

      . The physical violence included one occasion on which Ginger ripped Mr. Hartfield's shirt off. On another occasion, Ginger drew a knife on him. There was also an occasion where Ginger threw a laptop into the windshield of Mr. Hartfield’s car. Miller was forced to witness many of these fights and was upset by them.

      . Ginger said that she would leave Miller in one room while she and Ramona went into the bathroom and smoked the cocaine using a pipe.

      . Ginger testified that when she would drink in front of Miller, she referred to the alcohol that she was drinking as "hot coffee."

      . His undisputed testimony was that he does drink occasionally, and that in the past year he may have bought “three or four cases of beer, so one, two beers a week."


author: SMITH, Chief Justice, for the Court. DIAZ, Justice,

text:
    Karl ALBERT, et al. v. ALLIED GLOVE CORPORATION, et al.
    No. 2005-CA-01022-SCT.
    Supreme Court of Mississippi.
    Nov. 30, 2006.

      Robert Gordon Taylor, III, Robert A. Pritchard, Jackson, Helen Elizabeth Swartzfager, Laurel, attorneys for appellants.
    T. Hunt Cole, Jr., Thomas W. Tardy, III, Laura Devaughn Goodson, Jackson, Dominic John Ovella, attorneys for appel-lees.
   SMITH, Chief Justice, for the Court.

¶ 1. This case is before this Court on appeal from the Circuit Court of Jefferson County, Mississippi, by one hundred and two plaintiffs (hereinafter “Albert”) who allege they suffered injuries caused by exposure to asbestos. Albert seeks review of the circuit judge’s decision to dismiss their claims without prejudice. Albert argues the judge’s retroactive application of the change in joinder rules under Miss. R. Civ. P. 20, pursuant to Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss. 2004) and Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004), was improper.

¶ 2. This case was originally filed in the Circuit Court of Jefferson County in September of 2000, on behalf of 259 plaintiffs against approximately 98 defendants, alleging various tort and product liability theories related to the plaintiffs’ alleged exposure to asbestos. The following month, an amended complaint was filed, adding three plaintiffs. In October of 2004, a portion of the 97 Defendants filed a motion for relief pursuant to Mangialardi. In Mangialardi, 889 So.2d at 495, we found that plaintiffs in an asbestos, mass-tort litigation case, failed to provide sufficient information to justify joinder. As a result, this Court remanded the case, ordering the trial court to (1) transfer each plaintiff to a court of proper venue and jurisdiction, and (2) dismiss without prejudice the complaint of each plaintiff who failed to provide the court with sufficient information for determining proper venue and jurisdiction. Id.

¶ 3. In the case at bar, after several motions, hearings, and orders following the defendants’ motion for relief pursuant to Mangialardi, the trial judge entered an order on April of 2005, dismissing without prejudice Albert’s claims. The judge based his ruling on the fact that Albert is neither a resident of this state nor alleges exposure to asbestos in this state. Aggrieved, Albert appeals, assigning four errors to the dismissal without prejudice.

¶ 4. We hold that the trial judge did not err in dismissing without prejudice the out-of-state plaintiffs whose causes of action accrued outside of Mississippi.

ISSUES
I. WHETHER THE CIRCUIT COURT IMPROPERLY APPLIED MISS. R. CIV. P. 20 RETROACTIVELY RESULTING IN SEVERANCE AND DISMISSAL OF THE PLAINTIFFS’ CLAIMS.
II. WHETHER THE CIRCUIT COURT FAILED TO PROPERLY APPLY THE DOCTRINE OF FORUM NON CONVENIENS OR TO TAKE MEASURES TO PROTECT THE PLAINTIFFS’ CASES FROM DISMISSAL.
III. WHETHER THE CIRCUIT COURT VIOLATED THE PLAINTIFFS’ RIGHTS UNDER ARTICLE 3 SECTIONS 14 AND 24 OF THE MISSISSIPPI CONSTITUTION AND THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
IV. WHETHER THE CIRCUIT COURT VIOLATED THE PLAINTIFFS’ RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

STANDARD OF REVIEW

¶ 5. The standard of review regarding joinder and venue is whether the trial court abused its discretion. Culbert v. Johnson & Johnson, 883 So.2d 550, 552 (Miss.2004); Armond, 866 So.2d at 1097.

DISCUSSION

I. WHETHER THE CIRCUIT COURT IMPROPERLY APPLIED MISS. R. CIV. P. 20 RETROACTIVELY RESULTING IN SEVERANCE AND DISMISSAL OF THE PLAINTIFFS’ CLAIMS.

¶ 6. Albert argues since their claims were already filed when this Court decided Armond and Mangialardi, the changes to Rule 20 should not have been retroactively applied to their pending cases. However, this Court has repeatedly held judicially enunciated rules are to be applied retroactively. See Thompson v. City of Vicksburg, 813 So.2d 717, 721 (Miss.2002) (“Retroactive application is not limited to pending appeals .... but also applies to cases awaiting trial.”); Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997) (same); Estate of Stamper v. Edwards, 607 So.2d 1141, 1148 (Miss.1992) (“[F]amiliar prohibitions on ex post facto laws do not preclude the Legislature (or this Court) giving retroactive effect to new enabling, power-conferring rules, or rules of procedure or practice, or new rules of duty and obligation foreshadowed by what had gone before.”) (citations omitted). See Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 546 (5th Cir.1992) (Similar to this Court’s holding, the Fifth Circuit has similarly ruled “to the maximum extent possible, the amended Rules should be given retroactive application.”) (quoting Atlantis Dev. Corp. v. United States, 379 F.2d 818, 823 (5th Cir.1967)).

¶ 7. While Albert concedes this longstanding rule, he cites Johnson v. Memorial Hospital of Gulfport, 732 So.2d 864, 865 (Miss.1998), for the exception that “application of retroactivity should be balanced with a recognition of possible unfairness where certain events transpired under the former rule.” See Cain v. McKinnon, 552 So.2d 91, 92 (Miss.1989). Albert argues that after five years of filing his complaint, he is now subject to dismissal without the ability to pursue their actions in another forum due to statutes of limitations concerns or changes in law. However, Albert fails to recognize this Court has not hesitated to dismiss plaintiffs’ causes of action without prejudice where the plaintiffs were similarly situated as Albert, and four years after the plaintiffs filed suit. See Amchem Prods., Inc. v. Rogers, 912 So.2d 853, 855 (Miss.2005); Dillard’s, Inc. v. Scott 908 So.2d 93, 96 (Miss.2005).

¶ 8. First, it should be made clear that this is not a forum non conveniens case. Rather, it is simply a Rule 20 joinder issue. This Court will continue to recognize the precedent of Armond and Man-gialardi and its application to all pending cases in the State of Mississippi, which held plaintiffs may not be joined under Rule 20 unless their claims are connected by a distinct, litigable event. Armond, 866 So.2d at 1099. We have made expressly clear by this line of evolving venue and joinder cases that we will no longer tolerate the presence of cases which do not belong in Mississippi. If we do not apply Mangialardi and the other cases, alongside the changes in Rule 20, to pending suits we will strip our trial courts of a valuable tool in guarding the integrity of our court system. Every case filed involving out-of-state litigants with no connection with Mississippi depletes away the judicial resources of this state.

¶ 9. In Amchem Prods., Inc., 76 plaintiffs filed suit against 136 defendants, alleging tort and product liability claims for exposure to asbestos. 912 So.2d at 855. Of the 76 plaintiffs, only six either lived in Mississippi or alleged exposure to asbestos in this state. Id. at 856. The defendants filed a motion to sever and transfer, or dismiss the plaintiffs’ claims, which the trial judge denied. Id. at 856. On appeal, this Court held that although the trial judge did not have the benefit of Armond and Mangialardi at the time he denied the defendants’ motion, those decisions still applied to the case on review. Id. at 858. In finding that Armond and Mangialardi were controlling, this Court dismissed without prejudice the claims of the remaining 70 out-of-state plaintiffs, who had no connections to Mississippi and whose claims accrued outside the state. Id. at 859. This Court reversed and remanded the trial judge’s decision in March of 2005, over four years after the plaintiffs filed their original complaint in February of 2001. Id. at 855-56.

¶ 10. In Dillard’s, Inc., this Court also retroactively applied Armond and it progeny where the plaintiffs filed suit before this Court issued the Armond decision. Id. at 96. In Scott, we dismissed without prejudice racial discrimination claims made by out-of-state plaintiffs with no connections to Mississippi and whose causes of action accrued outside of the state. Id. at 94, 98. Moreover, the dismissal came over four years after the plaintiffs filed their complaints. Id. at 94.

¶ 11. We have also held in Canadian National/Illinois Central Railroad v. Smith, 926 So.2d 839, 846 (Miss.2006), that plaintiffs’ cases that are not properly before the court in Mississippi, either because the plaintiffs are not residents of the State or do not allege exposure or injury in the State, should be dismissed without prejudice, leaving them with the decision to refile in an appropriate venue.

¶ 12. Furthermore, as neither Albert nor any of the other Joint Appellants have demonstrated that they will not be able to maintain suits in other jurisdictions, there is no evidence of any alleged unfairness that will result from the application of retroactivity in this case. They have made merely a bold, broad allegation only of such alleged prejudice. Therefore, we find that our recent case law and the changes in Rule 20 must be applied to pending cases, and thus the trial court’s ruling which dismissed the plaintiffs’ suit without prejudice was correct.

II. WHETHER THE CIRCUIT COURT FAILED TO PROPERLY APPLY THE DOCTRINE OF FORUM NON CONVENIENS OR TO TAKE MEASURES TO PROTECT THE PLAINTIFFS’ CASES FROM DISMISSAL.

¶ 13. Albert asserts under the doctrine of forum non conveniens, a suitable forum must exist for the plaintiffs to refile their case, and if not, the trial court should issue an order requiring defendants to waive any statute of limitation defenses which could be raised in the alternative forums. See Shewbrooks v. A.C. & S., Inc., 529 So.2d 557, 562 (Miss.1988) (holding the doctrine of forum non conveniens cannot be applied to dismiss a case if it is barred elsewhere by a statute of limitations, unless the defendant is willing to waive the statute of limitations defense) (superseded by statute on other grounds as stated in S. Pac. Transp. Co. v. Fox, 609 So.2d 357 (Miss.1992)). According to Albert, the danger is that while the cases were pending in Mississippi, the statute of limitations may have run in a valid alternate jurisdiction.

¶ 14. Contrary to Albert’s position, this case does not turn on the doctrine of forum non conveniens. Rather, the determination of this case clearly falls under Rule 20, Armond, Mangialardi and the subsequent line of cases recognizing the dismissal of claims made by out-of-state plaintiffs with no connections to Mississippi and whose causes of action accrued outside of the state. See; Smith 926 So.2d at 846; Amchem, 912 So.2d at 859; Dillard’s, 908 So.2d at 100. Accordingly, this argument is without merit. We find that the trial court did not err in dismissing plaintiffs’ claims for the reasons discussed above in Issue I.

III. WHETHER THE CIRCUIT COURT VIOLATED THE PLAINTIFFS’ RIGHTS UNDER ARTICLE 3 SECTIONS 14 AND 24 OF THE MISSISSIPPI CONSTITUTION AND THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

¶ 15. Albert argues that his constitutionally-afforded right to due process, under both the Mississippi and federal constitutions, was violated by the trial court’s dismissal of his claims. This appears to be based on two arguments: first, that the “Plaintiffs filed their suits properly under Mississippi law and in reliance on the Courts of Mississippi at the time of filing,” and that “by the Court’s order severing and dismissing Plaintiffs’ causes of action based solely on a change in the rules of procedure and not on the merits of the cases, the plaintiffs have suffered the loss of inherent rights.... ” Citing Garrett v. Gay, 394 So.2d 821, 322-23 (Miss.1981), Albert also argues that personal injury claims are property rights and dismissal had caused them to suffer the loss of these rights.

¶ 16. To analyze the argument of whether there was a due process violation, we must determine whether Albert was deprived of something in which he held a protected interest; if he was, we must determine what type of process he was entitled to receive before the deprivation occurred. Logan v. Zimmerman Brash Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265, 273 (1982). It is without question that “a cause of action is a species of property protected by the Fourteenth Amendment’s Due Process Clause” of the federal constitution. Id. at 428, 102 S.Ct. 1148. Further, “[t]he [Supreme] Court traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances.” Id. at 429, 102 S.Ct. 1148.

¶ 17. However, Albert has not yet demonstrated that he was been deprived of his property interest in his lawsuit. While the suit may have been dismissed without prejudice from a Mississippi court, neither Albert nor the other Joint Plaintiffs have shown that they have attempted to file in another jurisdiction and been barred from doing so. Therefore, we simply do not know if there has been a deprivation.

¶ 18. If there has been a deprivation, we must then analyze whether Albert received due process. “[T]he Fourteenth Amendment’s Due Process Clause has been interpreted as preventing the States from denying potential litigants use of established adjudicatory procedures, when such an action would be the equivalent of denying them an opportunity to be heard upon their claimed rights.” Id. at 429-30, 102 S.Ct. 1148 (internal quotation, citation, and alteration omitted). Ultimately, “the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged,” and therefore “some form of hearing is required before the owner is finally deprived of a protected property interest.” Id. at 433, 102 S.Ct. 1148 (internal quotation & citation omitted).

¶ 19. In the case at hand, and despite Albert’s arguments to the contrary, there was ample due process. Indeed, counsel for Albert extensively briefed the trial court on the merits of their argument. They also received the benefit of three separate hearings before the trial judge regarding the various intricacies of the case: one on October 15, 2004, one on February 7, 2005, and one on March 28, 2005.

¶ 20. Even if Albert demonstrated a deprivation, this was more than sufficient due process. Accordingly, we find no merit to this argument.

IV. WHETHER THE CIRCUIT COURT VIOLATED THE PLAINTIFFS’ RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

¶ 21. Finally, for the first time on appeal, Albert argues the dismissal of his claims violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, which forbids states to “make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.” Albert is not entitled to raise this new issue on appeal, since doing so prevents the trial court from first having the opportunity to address this error. Crowe, v. Smith, 603 So.2d 301, 305 (Miss.1992); Cooper v. Lawson, 264 So.2d 890, 891 (Miss.1972). Since the record does not reflect that the Albert presented this argument at the trial court level, Albert is barred from raising this issue on appeal. Purvis v. Barnes, 791 So.2d 199, 202 (Miss. 2001); Chassaniol v. Bank of Kilmichael, 626 So.2d 127, 133-34 (Miss.1993).

¶ 22. However, for the sake of argument, we will discuss the merits of Albert’s claim. Albert’s argument is based upon the concept that the citizens of other states should have equal access to bring lawsuits in Mississippi, and that by retroactively applying changes in Rule 20, we have deprived these litigants of their right to access to the courts of this state.

¶23. In support thereof Albert provides only one citation: Minn. v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n. 12, 101 S.Ct. 715, 727, 66 L.Ed.2d 659, 673 (1981). However, it is unclear what this case — involving a state statute regulating the sale of milk in Minnesota — has to do with the present issue, as it involved the Commerce clause and the Due Process clause components of the Fourteenth Amendment, and Albert’s brief provides no guidance.

¶ 24. The right of access to courts has a extensive and significant presence in American jurisprudence. See generally Ryland v. Shapiro, 708 F.2d 967, 971-72 (5th Cir.1983) (finding it “clear that the [Supreme] Court viewed the right of access to the courts as one of the privileges and immunities accorded citizens under article 4 of the Constitution and the fourteenth amendment” as well as the First Amendment). Despite this lofty tradition, state and federal courts are not compelled to hear every single claim that a litigant wishes to bring; our courts are restrained by jurisdictional requirements. Albert has not offered any reason why his case should be fixed in the Mississippi court system other than he filed it here originally. It has absolutely no place in our court system in light of the changes in precedent and Rule 20.

¶ 25. Albert has not demonstrated that our refusal to hear claims over which we have no jurisdiction has deprived him of access to a court in another jurisdiction. Nór has Albert demonstrated any concrete reason why the action should be maintained in Mississippi. Accordingly, there is no constitutional violation.

¶ 26. Today’s decision is consistent with our recent holdings in Dillard’s, 908 So.2d at 100; Amchem, 912 So.2d at 859; Smith 926 So.2d at 846, where this Court directed claims of non-resident plaintiffs with no connection to the State of Mississippi to be dismissed without prejudice.

CONCLUSION

¶ 27. For the reasons stated above, this Court finds the out-of-state plaintiffs whose causes of action accrued outside of Mississippi should be dismissed without prejudice. The judgment of the Circuit Court of Jefferson County, Mississippi, is affirmed.

¶ 28. AFFIRMED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY GRAVES, J. RANDOLPH, J., NOT PARTICIPATING.

DIAZ, Justice,

Dissenting.

¶ 29. In this case the majority adopts an extreme minority stance on the forum non conveniens doctrine. Because the majority parts with United States Supreme Court precedent, all federal courts, over a dozen state jurisdictions, and overturns our previous easelaw regarding forum non conveniens, I must respectfully dissent. The plaintiffs argued that the trial court failed to ensure that an alternate forum suitable for their claims existed when ordering their case dismissed without prejudice. The obvious danger is that while the cases were pending in Mississippi, the statute of limitations may have run in a valid alternate jurisdiction.

¶ 30. The majority dismisses this argument, reasoning that “this is not a forum non conveniens case,” but “simply a Rule 20 joinder issue.” The complexity of this case, and the current state of our mass tort system, is not as “simple” as the majority would wish it.

¶ 31. Recent decisions of this Court have mandated dismissal without prejudice as a result of forum non conveniens. See Amchem Prods, v. Rogers, 912 So.2d 853, 859 (Miss.2005)(“The out-of-state Plaintiffs with no connection to the State of Mississippi and whose causes of action accrued out of state should be dismissed without prejudice based upon forum non-conve-niens”); Illinois Cent. R.R. v. Gregory, 912 So.2d 829, 836-37 (Miss.2005); State Farm Mut. Auto. Ins. Co. v. Murriel, 904 So.2d 112, 116 (Miss.2004). In those cases we did not address the possible statute of limitations problems with refiling cases, instead focusing on clarifying the principles of venue and joinder in our state courts. It is longstanding precedent in this state and in the federal courts that the transfer of a ease based upon the doctrine of forum non conveniens first requires another appropriate forum.

¶ 32. The seminal examination of the doctrine can be found in Shewbrooks v. AC. & S., Inc., 529 So.2d 557, 561 (Miss. 1988). The case explained that “ ‘[t]he doctrine of forum non conveniens presupposes ... [that] there is at least one forum other than the forum chosen where the plaintiff may bring his cause of action, and it is necessary the trial court determine such other forum is available.’ ” Id. at 561 (quoting Zurich v. Inman, 221 Tenn. 393, 426 S.W.2d 767, 771 (1968)) (emphasis added); see also Restatement (second) of Conflict of Laws, § 84 Comment C (“the action will not be dismissed unless a suitable alternative forum is available to the plaintiff’). The Court then looked to the United States Supreme Court for further information regarding the doctrine, determining ultimately that “ ‘[i]n all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two fo-rwms in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.’ ” Id. at 562 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)) (emphasis added).

¶ 33. Simply put, the doctrine means that “[a] state will not exercise jurisdiction if it is a seriously inconvenient forum for the trial of the action provided that a more appropriate forum is available to the plaintiff.” Id. at 561 (emphasis added); Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co., 728 So.2d 573, 577 (Miss.1999) (same). Initially, the trial court must determine that there is another forum where the action may be brought. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (“At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum ... Ordinarily, this requirement will be satisfied when the defendant is ‘amenable to process’ in the other jurisdiction”) (emphasis added, citation omitted); Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 221 (5th Cir.2000) (“A court facing a motion to dismiss for forum non conveniens must first assess whether an alternate forum is both available and adequate”) (emphasis added); Delfosse v. C.A.C.I., Inc.-Federal, 218 Cal. App.3d 683, 690, 267 Cal.Rptr. 224 (Cal.Ct. App.1990) (“the general rule is that unless there is an alternative forum, a motion to dismiss based upon an inconvenient forum argument shall not be granted”); Binder v. Shepard’s Inc., 133 P.3d 276, 279-80 (Okla.2006) (“the existence of a viable alternate forum is a prerequisite to the application of the doctrine of forum non con-veniens”).

¶ 34. It may also be required at this initial stage to determine if the statute of limitations has run in the more appropriate fora. This is because “there is one classic instance when the doctrine of forum non conveniens will never be applied, and that is to dismiss a case if it is barred elsewhere by a statute of limitations, unless or until the defendant is willing to stipulate that he will waive the statute of limitation defense.” Shewbrooks, 529 So.2d at 562 (emphasis added).

¶ 35. Despite this “classic” rule, the majority continues to focus upon Rule 20, which has been altered drastically in the past years. Because we have continually failed to craft a clear and understandable doctrine regarding joinder, we have had to repeatedly tinker with our precedent and the rule, resulting in a tangled and convoluted doctrine that no trial court can adequately apply. Joinder was broken pre-Armond, and it remains broken today, a tangled web of clashing precedent and theory.

¶ 36. In the case at hand, the best and equitable result would be to hold that the existence of a viable alternate forum is a prerequisite to the application of the doctrine of forum non conveniens. If a viable alternate forum appears to be barred due to the statute of limitations, a trial court should condition an order granting dismissal due to forum non conveniens on the defendant’s waiver of the statute of limitations. See Restatement (second) of Conflict of Laws, § 84, Comment E (“a court which finds itself to be an inappropriate forum under the rule of this Section must dismiss the action outright, or do so conditionally (as by requiring that the defendant stipulate to accept service of process and not plead the statute of limitations in some second state that is deemed a more convenient forum)”).

¶ 37. This result preserves both the rights of the defendants seeking a dismissal due to forum non conveniens, as they receive a transfer to a more appropriate jurisdiction, and the rights of the plaintiffs in maintaining their suit. Because the majority today refuses to choose this sound and well-traveled path, I must respectfully dissent.

GRAVES, J., JOINS THIS, OPINION IN PART.

      . In addition to the federal courts, California, Colorado, Connecticut, District of Columbia, Illinois, Kansas, Maine, Michigan, Missouri, New Hampshire, New Mexico, North Carolina, and Pennsylvania all require that a suitable alternate jurisdiction be available before a transfer due to forum non conveniens will be granted.

      . Shewbrooks has been superceded in part by statute and other acts of the Legislature. The discussion of the doctrine of forum non con-veniens in Shewbroolcs is not impacted by the changes in the statutes of limitation and venue laws.

      . Gulf Oil was later superseded by statute; 28 U.S.C. § 1404(a) now governs transfer between venues. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 722, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (the only modem application of federal common law regarding forum non conveniens is where the alternative forum is outside the federal court system).


author: RANDOLPH, Justice, for the Court.

text:
    Glen DANCY v. EAST MISSISSIPPI STATE HOSPITAL and The Mississippi Department of Mental Health.
    No. 2005-CA-01280-SCT.
    Supreme Court of Mississippi.
    Dec. 7, 2006.

      Roy Gregg Rogers, Christopher Michael Falgout, attorneys for appellant.
    Eugene M. Harlow, Laurel, attorney for appellees.
    Before SMITH, C.J., DIAZ and RANDOLPH, JJ.
   RANDOLPH, Justice, for the Court.

¶ 1. A patient taking part in the Clearing House Unit (“CHU”) Day Program at East Mississippi State Hospital (“EMSH”) was injured after escaping supervision on a field trip to Wal-Mart and attempting to commit suicide by running into traffic on Highway 19. The Circuit Court of Laud-erdale County found EMSH and its employees immune from liability under the discretionary function exemption of the Mississippi Tort Claims Act, see Miss.Code Ann. Section ll-46-9(l)(d). From that ruling comes this appeal and cross-appeal.

FACTS

¶2. On January 7, 1994, Glen Dancy (“Dancy”) was committed to EMSH by order of the Chancery Court of Noxubee County. This was the fourth time Dancy had been committed to EMSH. Between his commitment and the incident, Augustus signed five separate “Permission for Participation in Activities” slips. Prior to the incident, Dancy’s last attempted escape from EMSH occurred on January 3, 2001.

¶ 3. According to the Mississippi Department of Health (“MDMH”):

it is the goal of mental health to place the patient in the least restrictive environment that their condition will allow. And that has been scientifically proven to be the most effective way to treat a mentally ill patient. And in fulfilling that goal they have a program at [EMSH] that is called the Clearing House Unit [“CHU”].

The notes of Dancy’s “treatment team” indicate that “[Dancy] voiced a desire to participate in the [CHU][D]ay program.” According to Veliscia City-Jones (“City-Jones”), an institutional social worker at EMSH, the difference between CHU clients and CHU Day Program clients is that Day Program clients:

come over, and they attend groups, and they attend activities with the clients at [CHU] for us to monitor and let then-treatment team know how we see that they’re doing; if they’re capable of transitioning from the unit they were on over to [CHU] as a full-time resident of [CHU], to then move to the next step to progress out of the hospital.[]

The criteria for admission into the CHU Day Program is:

(1) Patients are to be referred by their Treatment Team of Continuing Care Services.
(2) Patients should have ground privileges for at least 2-3 months prior to their referral to the CHU Day Program.
(3) Patients should not be exhibiting any acute psychotic features or behavior disorders which could not be adequately managed in an open setting.

Dancy was admitted to the CHU Day Program.

¶ 4. Group therapy notes of March 20, 2002, indicate that Dancy successfully participated in a field trip. Treatment team notes from April 4, 2002, the day of the incident, reveal “[p]atient has increased control over his hallucinations ... not exhibiting inappropriate behavior such as stealing from others.”

¶ 5. City-Jones arranged for the CHU to take a field trip to Wal-Mart. Clearance to plan and implement the field trip came from a discussion of the treatment team. Dancy expressed a desire to participate in the field trip. According to City-Jones “if ... [patients] want to go and [there is] room, [the CHU] ha[s] the green light to take them without consulting any of their interdisciplinary team.” Since Dancy had been admitted to the CHU Day Program, a decision within the discretion of the treatment team, she felt “that he was to participate in our programming.”

¶ 6. On field trips, a written policy and procedure requirement mandates a patient:staff ratio of 5:1. On this trip there were twelve patients and three staff members, thus a ratio of 4:1.

¶ 7. Separate written permission slips for each field trip were not required by EMSH. Sims testified “it has just always been understood,” that they would be obtained on an annual basis. City-Jones stated if there was not an updated permission slip, “[t]hat person would have been removed from the trip.” According to Dr. Ramiro Martinez, the chief executive officer of EMSH, the permission slip is “not really necessary if the treatment team fel[t] like the individual is progressing to that point.” Although Dancy’s mother had signed permission slips in the past, she now claims she “informed the hospital that I did not want him removed for any reason. I was not informed of the trip to Walmart....” She asserts that “his mind wasn’t good at that time.” She now claims to have understood that EMSH needed her permission to take Dancy on each specific field trip, in spite of the fact that she signed only one permission slip annually. Two or three days after the incident, Augustus received another “Permission for Participation in Activities” slip, which she did not sign.

¶ 8. Regarding patient observation on field trips, Dr. Martinez stated there were no formal policies or procedures. EMSH employees explained that on field trips the staff members are “supposed to be where they can observe.” Recreation assistant Debbie Eggleston stated “[e]ach staff member that attended Wal-Mart had a certain group of [patients]” to watch. However, such observation did not preclude situations where patients may walk out of sight of the supervising staff member.

¶ 9. The use of physical force by staff members was also not a matter of formal policy. In most situations, City-Jones stated that “the normal procedure ... would be to contact [the] security office at [EMSH]. And then they would make the determination of what steps they take.” Prior to the arrival of security, physical force would be appropriate “where a client is a danger to self or a danger to others.” According to Sims, “common sense” and experience were the mandated protocol in such situations. Dr. Martinez provided that a patient may be physically restrained if such restraint is possible and “the patient is becoming ... markedly disturbed and [it is] for his safety.”

¶ 10. Each staff member on the field trip had experience regarding off-grounds trips. The trip to Wal-Mart was aptly described by the circuit court as follows:

[w]hile at Wal-Mart, [Dancy] was allowed to browse. After a short while, [Dancy] approached [City-Jones] with a Wal-Mart shopping bag, which contained a Walkman radio. [City-Jones] asked [Dancy] if he had a receipt and [Dancy] responded that he had lost the receipt. [City-Jones] escorted [Dancy] to the electronics department and [City-Jones] asked the clerk if [Dancy] had purchased the Walkman. The Wal-Mart clerk responded no. Then, [City-Jones] escorted [Dancy] to the front of the store to ask the check out clerks if [Dancy] had purchased the radio. At that point, [Dancy] tried to leave the store with the Wal-Mart shopping bag containing the radio and the alarm system activated. [Dancy] then came back into the store and went in the opposite direction from [City-Jones].
Then [City-Jones] called the CHU to advise them of the situation!] [City-Jones] stayed at the front of the store in an attempt to ensure that [Dancy] did not leave the store. At some point, Debbie Eggleston, another EMSH employee, came to the front of the store and [City-Jones] informed her of the situation. A few minutes afterward, [Dancy] came back to the front of the store, without the shopping bag, and had the Walkman radio out of its box, attached to his body with the headphones on. [Dancy] made another attempt to leave [the] store and Ms. Eg-gleston got his attention. At that point, one of the Wal-Mart customer service managers tried to talk to [Dancy]. Ms. Eggleston and the customer service manager convinced [Dancy] to relinquish the Walkman. As a result, [Dan-cy] became agitated and his behavior began to escalate!] [City-Jones] and Ms. Eggleston attempted to talk to [Dancy]. However, [Dancy] walked out of the Wal-Mart store exit. [City-Jones] followed [Dancy] out of the store and called for him to return. Despite her efforts, [Dancy] continued to walk through the Wal-Mart parking lot. [City-Jones] continued in her efforts to call after [Dancy], while watching him leave the parking lot, cross over Highway 19 and proceed up the [highway until he was out of her sight.
[City-Jones] called the [CHU] back to inform them that [Dancy] had left the Wal-Mart parking lot.[] Thereafter, [Dancy] jumped in front of a vehicle [on] Highway 19....

Dancy later claimed that he was trying to kill himself “[b]ecause [he] wanted a radio.” As a result of his injuries, Dancy alleges that he cannot run or jump. He has since been readmitted to EMSH and is currently a patient there.

¶ 11. Dancy filed a complaint against EMSH alleging that “[t]he actions of [EMSH] were negligent and in reckless disregard for the safety and well being of [Dancy]. The actions of [EMSH] proximately caused [Dancy’s] injuries.... ” Additionally, the complaint asserted that Augustus “affirmatively informed [EMSH] that she did not want [Dancy] removed from the facility for any reason, due to his mental condition and subsequent behavior.”

¶ 12. MDMH pled, inter alia, that “[Dancy’s] claims are barred by the provisions of the Mississippi Code Annotated Section 11-46-9 and in particular subsections (l)(b), (c), (d), (e), (f), (g), (h), (m), and (r).” MDMH filed a motion to dismiss and/or in the alternative motion for summary judgment in the circuit court. In support of its motion, MDMH argued that “the actions of EMSH were discretionary; therefore, MDMH is entitled to immunity pursuant to Miss.Code Ann. Section 11-46 — 9(l)(d).”

¶ 13. In response to the motion for summary judgment, Dancy argued that the functions of the defendants were ministerial, not discretionary, and, therefore, they were not entitled to immunity. Dan-cy also asserted if one assumed the functions were discretionary:

it is clear and convincing from the testimony of the employees of the Defendant that ordinary care was not used and that the employees of the Defendant showed recMess disregard for the safety of [Dancy] in the execution of the policies and procedures of the Defendant on this field trip.

¶ 14. In its memorandum opinion and judgment, the circuit court concluded that:

the actions of the employees in the handling of the patients and the implementation of the policy w[as] discretionary. ... [W]here the employee is required to rely upon his own judgment in the performance of a duty, that duty is discretionary. The employees had to use their own judgment in how the patients were allowed to roam around the store.... [T]he Court is of the opinion that taking patients on field trips is discretionary and that the employees of EMSH are immune even if that discretion is abused. [See Miss.Code Ann. Section 11-46-9(l)(d)]. Therefore, this Court is of the opinion that the Motion for Summary Judgment is well taken and that the MDMH is immune from liability under Section 11-16-9[ (l)](d), MCA. As such, the Court finds the MDMH is entitled to a judgment as a matter of law.

(Emphasis added).

ISSUES

¶ 15. The following two issues were raised, the first on appeal and the second on cross-appeal:

I. Whether the circuit court erred in dismissing all of Dancy’s claims as barred by discretionary function immunity.
II. Whether the circuit court erred in denying MDMH’s motion to dismiss for improper and/or insufficient service of process.

This Court finds Issue I is dispositive, and therefore, addresses only that issue. This Court dismisses the cross-appeal as moot.

STANDARD OF REVIEW

¶ 16. This appeal involves whether a governmental entity is exempt from liability under the Mississippi Tort Claims Act. In Mitchell v. City of Greenville, 846 So.2d 1028 (Miss.2003), this Court stated:

[ijmmunity is a question of law and is a proper matter for summary judgment under Miss. R. Civ. P. 56.
This Court reviews de novo a trial court’s summary judgment. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss.1988). All evidence is viewed in the light most favorable to the non-movant. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss.1990).

Mitchell, 846 So.2d at 1029-30. Therefore, we review de novo.

ANALYSIS

I. Whether the circuit court erred in dismissing all of Dancy’s claims as barred by discretionary function immunity.

¶ 17. “The [Mississippi Tort Claims Act] waives sovereign immunity from claims for money damages arising out of the torts of governmental entities and their employees....” L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1138 (Miss.1999). However, certain circumstances are exempt from this waiver of immunity. One such exemption provides:

[a] governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: ... (d) [b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused....

Miss.Code Ann. Section 11^46-9(l)(d) (emphasis added). This Court has stated that:

Section 1N46-9 appears to be patterned after 28 U.S.C. § 2680(a), the ‘discretionary function’ exception to the Federal Tort Claims Act. The United States Supreme Court has recognized that the majority of acts in the day-to-day operations of governmental activities involve the exercise of some form of discretion, however, not all of these acts are protected under the exception. In determining the scope of the acts protected under the exception, the Supreme Court held that only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). ‘The purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’ Id. at 323[, 111 S.Ct. 1267] (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)).

Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (Miss.1999).

¶ 18. “In determining whether governmental conduct is discretionary the Court must answer two questions: (1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives.” Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss.2001) (citing Jones, 744 So.2d at 260).

¶ 19. Regarding question (1), this Court must determine whether the function “involved an element of choice or judgment,” id., i.e. is the function discretionary or ministerial? This Court has stated that “[a] duty is discretionary if it requires the official to use her own judgment and discretion in the performance thereof.” T.M. v. Noblitt, 650 So.2d 1340, 1343 (Miss.1995) (citing Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923 (1935)). By contrast, an act is ministerial “[if] the duty is one which has been positively imposed by law and its performance required at a time and in a manner or under conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.” L.W., 754 So.2d at 1141. See also Collins, 876 So.2d at 289.

¶ 20. The functions at issue in this case include: (I) admitting Dancy to the CHU Day Program; (ii) permitting Dancy to attend the field trip to Wal-Mart; (iii) observing Dancy in Wal-Mart; and (iv) permitting Dancy to leave Wal-Mart without attempting physical restraint. Neither party alleges that any of these functions lacked “an element of choice or judgment.” See Bridges, 793 So.2d at 588. Admission of Dancy to the CHU Day Program, which included permission to attend Day Program field trips, was within the discretion of the treatment team. Patient observation on field trips was flexible and did not require staff members to constantly have patients in sight. The use of physical restraint requires staff members to make assessment of the situation and then to exercise common sense in making a judgment call based upon their experience. Therefore, this Court concludes that question (1) is answered in the affirmative, as the activities involved elements of choice or judgment.

¶ 21. Therefore, we address question (2), “whether the choice or judgment in supervision involves social, economic or political policy alternatives.” Id. There are no economic or political policy alternatives at issue here, leaving only an analysis of the social policy alternative. Thus, we are left with a singular inquiry: did the choice or judgment in supervision involve social policy? Unquestionably, the choice and judgments required of these state workers emanate from, or relate to, matters of human welfare. The CHU Day Program seeks to integrate these patients into society as a whole, requiring a multitude of discretionary decisions by staff members, as opposed to the ministerial functions of the nurses aides in Mississippi Department of Mental Health v. Hall, 936 So.2d 917 (Miss.2006).

¶ 22. The policy underlying question (2) is that “[sjtate tort standards cannot adequately control those government decisions in which, to be effective, the decision maker must look to considerations of public policy and not merely to established professional standards or to standards of general reasonableness.” Womble v. Singing River Hosp., 618 So.2d 1252, 1263 (Miss.1993) (quoting Pruett v. City of Rosedale, 421 So.2d 1046, 1051-52 (Miss.1982)). In making the discretionary function determination, this Court has adopted the “public policy function test” announced by the United States Supreme Court in United States v. Gaubert, 499 U.S. at 322, 111 S.Ct. 1267. See Jones, 744 So.2d at 260. Applying that test, “this Court must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.” Gale v. Thomas, 759 So.2d 1150. 1162 (Miss.1999). See also Gaubert, 499 U.S. at 323, 111 S.Ct. 1267 (quoting Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531, 541 (1988)) (“when properly construed, the exception ‘protects only governmental actions and decisions based on considerations of public policy.’ ”).

¶ 23. In Gaubert, the United States Supreme Court stated “[i]f the routine or frequent nature of a decision were sufficient to remove an otherwise discretionary act from the scope of the exception, then countless policy-based decisions by regulators exercising day-to-day supervisory authority would be actionable. This is not the rule of our cases.” 499 U.S. at 334, 111 S.Ct. 1267. Therefore, the mere fact that patient observation and physical restraint are routine or frequent decisions does not render them devoid of policy implications. Moreover, “[w]hen established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” Id. at 324, 111 S.Ct. 1267 (emphasis added). Applied here, this standard involves two steps. First, Miss.Code Ann. Section 41-4-7(g) gives MDMH discretion “[t]o establish and promulgate reasonable minimum standards” and policies. Second, MDMH has “establishfed] and promulgated” standards which authorize discretion on the part of its agents. Patient observation and the physical restraint of patients provide two examples of such discretion in practice. Therefore, this Court concludes that MDMH’s overall policy of authorized discretion was implicated here. The choice or judgment involved in patient observation and the physical restraint of patients “involves social ... policy,” Bridges, 793 So.2d at 588, such that the governmental functions at issue were discretionary.

¶ 24. Having reached this conclusion, the cross-appeal, Issue II, is moot.

CONCLUSION

¶ 25. Accordingly, this Court (1) affirms on direct appeal the circuit court’s judgment that the governmental functions at issue were discretionary and, therefore, immune from liability under Miss.Code Ann. Section 11 — 46—9(l)(d) and (2) dismisses the cross-appeal as moot.

¶ 26. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: DISMISSED AS MOOT.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . According to Dancy's mother, Georgia Augustus, Dancy was first committed to EMSH in 1989 after intentionally overdosing on pills, suffering from alcohol problems, and hallucinating frequently.

      . The permission slips were signed on September 6, 1997, September 21, 1998, May 5, 1999, September 23, 1999, and August 7, 2001. They provided for "permission to participate in activities supervised by hospital staff on and off the grounds of [EMSH] while [Dancy] is a resident of Continuing Care Unit.” The permission slips also provided that, "participation in such activities is dependent upon approval of the treatment team and attending physicians.”

      . The “treatment team” consisted of a social worker, a psychologist, a nurse, a recreation worker, and a psychiatrist.

      . The stated purpose of the CHU is "[t]o provide each patient treatment in areas that will help them grow into a more stable and responsible person. It is our belief that we should support each of our patients by providing a continuing process of rehabilitation in the least restrictive environment." (Emphasis added).

      .Claire Sims, Director of Activity and Recreation Services at EMSH, stated a primary purpose of field trips is "to normalize the patients and get them into the community.”

      . Specifically, City-Jones called CHU nurse Pamela Watkins and told her “we need somebody to come get [Dancy], because he is trying to take this Walkman.” This was in accordance with applicable policy and procedure mandating the notification of a CHU nurse in escape situations. The nurse then calls security, which Watkins informed City-Jones she would do. The Wal-Mart was approximately a three-to-four minute drive from EMSH.

      . According to City-Jones, "[Dancy] was standing there demanding that they give [the Walkman] back to him, it was his, he had bought it, he wanted it back....”

      . This occurred five to ten minutes after her initial call. She told nurse Watkins that Dan-cy "had left the actual physical parking lot, and that we needed somebody to get him. Told her which way he was going on [Highway] 19.” City-Jones stated that she did not see Dancy's escape as a threat to his health "until he got to where he was going to go out into the highway.”

      . The circuit court additionally concluded that "[n]one of the evidence before the Court indicates that EMSH employees acted with reckless disregard for the safety of the Plaintiff.”

      . The Federal Tort Claims Act has a similar exemption which provides that the United States Government is not liable for:
      any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
      28 U.S.C. § 2680(a).

      . The ordinaiy care standard is not a consideration under this test as "Miss.Code Ann. § 11—46—9(l)(d) exempts governmental entities from liability of a discretionary function or duty 'whether or not the discretion be abused.' " Collins v. Tallahatchie County, 876 So.2d 284, 289 (Miss.2004).

      . This case is clearly distinguishable from this Court’s recent decision in Hall. There a patient in a locked unit at EMSH, who had been described in recent progress notes as a "danger to herself and others,” 936 So.2d at 923, was seriously injured after falling from a third-story window during an escape attempt. See id. at 921. The injured patient, along with two other patients had taken sheets from a linen closet; freely entered an unlocked, off-limits conference room adjoining the nurse's station; removed a window pane (which lacked a security screen); and attempted to escape. See id. at 923-24. During the escape, most of the nurse’s aides were watching television. See id. at 924. This Court stated:
      East Mississippi is required by statute to provide patients with mental health care and treatment in accord with contemporary professional standards. Miss.Code Ann. § 41-21-102(6) (Rev.2005). Adhering to the mandates of this statute is not discretionary, and, therefore, it is ministerial. Dr. Hiatt testified that contemporary professional standards dictate that: (1) the doors to rooms where a patient might be present and unsupervised should be locked; (2) security screens should be placed on windows in rooms where a patient might be present and unsupervised; and (3) patients should be monitored in a way so that any out-of-the-ordinary actions on the part of the patients might be detected.
      We find that the duties East Mississippi owed to its patients were not discretionary and that the discretionary function immunity provisions of the Mississippi Tort Claims Act do not shield East Mississippi from liability. ...
      936 So.2d at 925 (emphasis added).