author: ISHEE, J.,

text:
    A.C.W., Appellant v. J.C.W., Appellee.
    No. 2006-CA-00337-COA.
    Court of Appeals of Mississippi.
    June 5, 2007.

      Richard V. Dymond, Gulfport, for Appellant.
    J.C.W., Appellee, pro se.
    Before MYERS, P.J., CHANDLER, GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1 On December 20, 2005, the Pearl River County Chancery Court entered a directed verdict denying the termination of the parental rights of the father, J.C.W., regarding his daughter, H.D.W. Aggrieved, the mother, A.C.W., appeals this order. Finding no error, we affirm.

FACTS

¶ 2 The parties to this suit, A.C.W. and J.C.W., were divorced based on irreconcilable differences on July 20, 2000. They had a daughter during the marriage, H.D.W., who was born on September 29, 1999. Prior to the divorce, in January or April 2000, a temporary court order gave A.C.W. custody of the child since J.C.W. did not have a job or anywhere to live. The order granted visitation rights to J.C.W. and ordered him to pay child support. At the time of the filing of this appeal, A.C.W. was engaged, and J.C.W. is married and has a child by his new wife.

¶ 3 On March 17, 2003, the chancellor entered another temporary order granting J.C.W. visitation of H.D.W. for four hours every Saturday morning at Friendship Park. The order allowed the parents to bring visitors, but it explicitly stated that A.C.W.’s parents were not allowed to attend.

¶ 4 At trial, Dr. John Galloway testified for A.C.W. He examined H.D.W. once and met with J.C.W. a few times. It was his opinion, based on his time with 'J.C.W., that the relationship between J.C.W. and the girl was mostly nonexistent, and that was something J.C.W. wanted to change. His testimony concerning J.C.W. revealed that, while J.C.W. always maintained that he would like to have a relationship with his child, he had previously considered giving up parental rights in light of all the disruptions that had already taken place in their lives.

¶ 5 A.C.W. next called her ex-husband to testify at trial as an adverse witness. According to his testimony, J.C.W. did not visit his daughter after the divorce until July 2001; however, he said that he attempted to visit on numerous occasions but was denied. He testified that he was only allowed to talk to A.C.W.’s parents, and they would make it difficult for him to visit. On an earlier occasion, he retained an attorney to enforce his visitation rights, but he explained that his attorney’s inaction was one of the reasons he failed to visit H.D.W. for some time. Other reasons for his failure to visit his daughter were his unstable financial position and legal problems following the divorce. He also testified that he kept receipts from his purchases at McDonald’s as evidence of his Saturday morning visitations and that he made videotapes of the visitations.

¶ 6 Lastly, A.C.W. took the stand herself and also presented the testimony of her father. They both testified that the child was available for J.C.W. to visit and that he failed to come to visitations on different occasions. According to them, it was J.C.W. who was uncooperative with the visitation. They testified that he would fail to show on Saturday mornings and would send his mother to tell them he could not make it. A.C.W. also claimed that the child’s attitude toward her father changed in that she did not like visiting him at the park anymore.

¶ 7 At the close of the case, the chancellor refused to find by clear and convincing evidence that J.C.W. had abandoned his relationship with H.D.W. While the chancellor noted that there was a six-month period during which J.C.W. did not exercise his visitation, he found that J.C.W. had continued to pay child support during that time, which A.C.W. continued to receive. According to the chancellor, this was evidence that J.C.W. “did not consciously walk away from a relationship with the child.”

¶ 8 The chancellor also refused to find an erosion of the relationship between J.C.W. and H.D.W., which he found had never “been really given a true opportunity to be productive” because of the conflict between the parents. He pointed out that it was A.C.W. who had, since the beginning, frustrated the court’s attempts to allow J.C.W. the visitation to which he was entitled.

¶ 9 The chancery court entered an order dated December 20, 2005, granting J.C.W.’s motion for a directed verdict and denying termination of his parental rights regarding H.D.W. A.C.W. appeals from this order and asserts that the chancellor erred in refusing to terminate J.C.W.’s parental rights.

STANDARD OF REVIEW

¶ 10 Appellate review in a case to terminate parental rights is limited to reviewing the chancellor’s findings under the manifest error/substantial credible evidence test. S.N.C. v. J.R.D., 755 So.2d 1077, 1081(¶ 11) (Miss.2000) (citing Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991)). On appeal, the court will ask whether there was “credible proof sufficient for the trier of fact to find abandonment by a parent based on clear and convincing evidence.” Id. (citing Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992)). However, it is proper to proceed de novo where the trial court has misapplied a controlling rule of law. Id.

ISSUES AND ANALYSIS

¶ 11 A.C.W.’s asserts that the chancellor erred in failing to terminate J.C.W.’s parental rights because she presented evidence that he failed to exercise visitation or to pay child support and that there was a substantial erosion of the relationship between him and H.D.W.

¶ 12 A.C.W. cites the following statute to support her claims:

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment.

Miss.Code Ann. § 93-15-103(3)(b), (f) (Rev.2004). Additionally, the chancellor must find grounds for termination by clear and convincing evidence in order to terminate the parental rights of a parent regarding the child. Miss.Code Ann. § 93-15-109 (Rev.2004).

¶ 13 “It is well settled that a parent’s right to raise her children is of a fundamental nature, and is entitled to great protection, but that parental rights may be terminated when the welfare of the children is threatened. M.L.B. v. S.L.J., 806 So.2d 1023, 1026(¶ 8) (Miss.2000) (citing Vance, 582 So.2d at 417).

¶ 14 As far as A.C.W.’s claim that J.C.W. abandoned his daughter, abandonment is any conduct that “evinces a settled purpose to forego all duties and relinquish all parental claims to the child.” S.N.C., 755 So.2d at 1081(¶11); Natural Mother v. Paternal Aunt, 583 So.2d 614, 618-19 (Miss.1991) (citing Ainsworth v. Natural Father, 414 So.2d 417, 419 (Miss.1982)). The test for abandonment is objective and requires that, “under the totality of the circumstances ... the natural parent has manifested [his] severance of all ties with the child.” Gunter v. Gray, 876 So.2d 315, 320(1121) (Miss.2004) (citing S.N.C., 755 So.2d at 1080(¶ 11)). The supreme court has ruled that “failure alone to pay child support is insufficient to constitute abandonment.” Petit v. Holifield, 443 So.2d 874, 878 (Miss.1984) (citing In re Adoption of a Female Child, 412 So.2d 1175, 1178 (Miss.1982)). The father in Pet-it was able to put on evidence of his inability to pay child support while supporting his wife and himself. Id.

¶ 15 A.C.W. also claims that there was an erosion of the relationship between J.C.W. and the child sufficient to warrant termination of his parental rights. However, the typical case in which erosion of the relationship warranted termination of parental rights is much more extreme than this one. E.g., May v. Harrison County Dep’t of Human Servs., 883 So.2d 74, 78-79 (¶ 12-15) (Miss.2004) (mother breached DHS agreement by continuing to see the child’s father who had been convicted of sexual battery of the eleven-year-old girl); G.Q.A. v. Harrison County Dep’t of Human Servs., 771 So.2d 331, 337(¶ 27) (Miss.2000) (the worst case of child abuse ever to come before the chancellor).

¶ 16 There is also support for the chancellor’s decision not to terminate parental rights when there is interference with the relationship. It was in error for a chancellor to terminate parental rights of a mother who tried to keep a relationship with her children and there was third party interference with her relationship with the children. De La Oliva v. Lowndes County Dep’t of Pub. Welfare, 423 So.2d 1328, 1331-32 (Miss.1982). Similarly, it was not error for a chancellor to refuse to terminate the parental rights of the father when the mother was part of the reason for the erosion of the relationship. In re M.L.W., 755 So.2d 558, 563(¶22) (Miss.Ct.App. 2000).

¶ 17 Upon review of this case, A.C.W.’s arguments do not convince us that the chancellor was in error in failing to find clear and convincing evidence to support the termination of J.C.W.’s parental rights.

¶ 18 In regards to the abandonment issue, we do not find that J.C.W. had any settled purpose to forgo his duties or his claims to being H.D.W.’s parent. Contrary to this, J.C.W. paid child support and occasionally exercised his visitation rights. The court noted that he had some legal troubles that possibly impacted his ability to visit his daughter and that A.C.W. put up “all kinds of roadblocks” to interfere with his visitation. J.C.W.’s testimony supports these findings by the chancellor.

¶ 19 Although he has done so infrequently, J.C.W. has continued to try to exercise his visitation rights. He is currently up-to-date on all of his child support payments. Furthermore, he has expressed a desire to develop a relationship with H.D.W. While Dr. Galloway’s testimony indicates that J.C.W. may have considered giving up his parental rights, he seemed to be looking to do what was best for the child at the time. At no point did J.C.W. state that he actually decided to give up his rights. We find this to be sufficiently credible evidence to support the chancellor’s finding that J.C.W. did not abandon H.D.W.

¶ 20 The chancellor’s ruling also addresses A.C.W.’s claim of erosion of the relationship between J.C.W. and his daughter. At trial, the chancellor found that A.C.W. had been frustrating J.C.W.’s attempts to exercise his visitation and cited this as a reason not to terminate his parental rights. Furthermore, the temporary order of March 2003 and the testimony of A.C.W.’s father revealed that he and his wife were prohibited, for whatever reason, from attending visitations at the park. The court’s ruling was that the conflicts between J.C.W. and A.C.W. and her parents were part of the reason why a relationship between J.C.W. and the child never developed.

¶ 21 Since the judge found interference by A.C.W. and her parents, the rulings of the courts in M.L.W. and De La Oliva are applicable here. The judge found there was conflict among the individuals involved in the case, specifically, interference with J.C.W.’s visitation rights. We cannot say that the judge was in error in refusing to find an erosion of the relationship in this case. The witnesses seemed to indicate that there was not much of a relationship between J.C.W. and his daughter, and the chancellor found that this was partly because of the difficulties presented by A.C.W. and her parents. Accordingly, he stated that he would not find an erosion of the relationship when the party seeking termination was partly to blame for the lack of a relationship.

¶ 22 In conclusion, we find that it was not error for the chancellor to refuse to terminate J.C.W.’s parental rights. The chancellor found that A.C.W. did not meet the high burden of proving by clear and convincing evidence either that J.C.W. abandoned H.D.W. or that the relationship between J.C.W. and his daughter had substantially eroded because of abuse, neglect, or prolonged absence. This issue is without merit.

¶ 23 THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . We will use initials for the parties to protect the minor’s identity.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Jethro WALLACE, Jr. a/k/a Jethro Wallace, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01074-COA.
    Court of Appeals of Mississippi.
    June 5, 2007.

      James N. Potuk, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Jethro Wallace, Jr. was convicted of robbery, in violation of Mississippi Code Annotated 97-3-73 (Rev.2006), in the Circuit Court of Clarke County. Following his conviction, Wallace was sentenced as a habitual offender to serve a term of fifteen years in the custody of the Mississippi Department of Corrections without the possibility of reduction, suspension, probation or parole and fined $10,000. He now seeks a new trial, raising one issue for our review, which we have recast for clarity:

WHETHER THE TRIAL COURT ERRED IN ALLOWING WALLACE TO REPRESENT HIMSELF AT HIS TRIAL?

Finding no error, we affirm.

DISCUSSION

¶ 2. Wallace first asserted that he wished to represent himself on the first day of his trial. The matter was discussed between the trial judge and Wallace in chambers, and the trial judge ultimately found Wallace to be mentally capable of “freely, voluntarily, and intelligently” waiving his right to counsel. Wallace’s appointed counsel was, however, ordered to remain present at the trial and serve as a standby. The record shows that the appointed attorney, on several occasions, interceded for Wallace during the trial. Following his conviction, Wallace filed a pro se motion for a new trial, asserting several grounds, including that “he had no lawyer to help him.” The lower court denied his motion for a new trial.

¶ 3. Wallace now contends that the trial judge erred in failing to ensure that Wallace was competent to knowingly and understandingly waive his constitutional right of representation by an attorney. In support of his proposition, Wallace points to the fact that the trial judge did not order a competency hearing before allowing him to represent himself. The State argues that the trial judge was not required to order a competency hearing before Wallace waived his right to counsel. Further, the State counters Wallace’s argument by asserting that the trial judge went strictly “by the book” in allowing Wallace to defend himself pro se.

¶ 4. Trial courts are required to make a “case-by-case determination of a defendant’s assertion of the right to proceed pro se.” Howard v. State, 701 So.2d 274, 283(¶ 31) (Miss.1997) (citing Metcalf v. State, 629 So.2d 558 (Miss.1993)). An appellate court is to review the decision of a trial court allowing a defendant to act as his own attorney for an abuse of discretion. Metcalf, 629 So.2d at 566.

¶ 5. “The test for competency to stand trial is certainly a standard which must be met before a defendant can be said to be capable of intelligently and knowingly waiving the right to counsel.” Howard, 701 So.2d at 280(¶ 18). However, there is no requirement that a trial judge order a competency hearing before a defendant may represent himself. Rather, our supreme court has adopted a test from the Fifth Circuit Court of Appeals that an appellate court is to employ in reviewing the decision of a trial judge to forego a competency hearing. In our review of a trial judge’s decision to dispense with a competency hearing, we are to ask the question, “Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about [a] defendant’s competence and alerted him to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense?” Howard, 701 So.2d at 281(¶21) (citation omitted). In light of this test, if a trial judge has a “reasonable ground” to believe that a defendant is incompetent to stand trial, then the court must order a hearing to determine competency. “The determination of what is ‘reasonable,’ of course, rests largely within the discretion of the trial judge [who] sees the evidence first hand [and] observes the demeanor and behavior of the defendant.” Howard, 701 So.2d at 281(1120). In this case, the trial judge had several opportunities to observe Wallace’s demeanor and behavior, but did not find a reasonable ground to determine that Wallace was incompetent to stand trial. After our review of the record, we cannot find any basis to support Wallace’s argument that the trial judge erred in foregoing a competency hearing.

¶ 6. Our supreme court requires that when a trial court is faced with a criminal defendant’s waiver of counsel, when the defendant is charged with a felony, the court must make an on-the-record determination that the waiver is intelligently and competently made, and state the facts upon which that determination is made. Conn v. State, 251 Miss. 488, 495, 170 So.2d 20, 23 (1964). In light of these jurisprudential requirements, our legislature embodied a set of rules, in Uniform Circuit and County Rule 8.05, outlining the procedural mandates that a trial court must follow when it becomes aware that a defendant wishes to proceed to trial acting as his own attorney. Rule 8.05 provides:

When the court learns that a defendant desires to act as his/her own attorney, the court shall on the record conduct an examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney. The court shall inform the defendant that:
1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney, the state will appoint one free of charge to the defendant to defend or assist the defendant in his/her defense.
2. The defendant has the right to conduct the defense and that the defendant may elect to conduct the defense and allow whatever role (s)he desires to his/ her attorney.
3. The court will not relax or disregard the rules of evidence, procedure or courtroom protocol for the defendant and that the defendant will be bound by and have to conduct himself/herself within the same rules as an attorney, that these rules are not simple and that without legal advice his/her ability to defend himself/herself will be hampered.
4. The right to proceed pro se usually increases the likelihood of a trial outcome unfavorable to the defendant.
5. Other matters as the court deems appropriate.
After instructing the defendant and ascertaining that the defendant understands these matters, the court will ascertain if the defendant still wishes to proceed pro se or if the defendant desires an attorney to assist him/her in his/her defense. If the defendant desires to proceed pro se, the court should determine if the defendant has exercised this right knowingly and voluntarily, and, if so, make the finding a matter of record. The court may appoint an attorney to assist the defendant on procedure and protocol, even if the defendant does not desire an attorney, but all disputes between the defendant and such attorney shall be resolved in favor of the defendant.

¶ 7. Our review of the record indicates that the trial court complied completely with Uniform Rule of Circuit and County Court 8.05, informing Wallace of every provision listed in the Rule and confirming Wallace’s understanding of each such provision. In fact, the court went further than required by the rule and explained the charges against Wallace and the consequences of a conviction. For the foregoing reasons, we cannot find error in the decision of the trial court in allowing Wallace to represent himself, and affirm the denial of Wallace’s motion for new trial.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY OF CONVICTION OF ROBBERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER AND FINE OF $10,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLARKE COUNTY.

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


author: ISHEE, J., IRVING, J.,

text:
    In the Interest of K. G., A Minor.
    No. 2004-CA-01797-COA.
    Court of Appeals of Mississippi.
    June 5, 2007.

      Jennifer Alicia Collins, Jackson, attorney for appellant.
    John M. Gilmore, Durant, attorney for appellee.
   ISHEE, J.,

for the Court.

¶ 1. On July 27, 2004, KG. was adjudicated in the Youth Court of Holmes County to be a delinquent child. KG. was committed to the Columbia Training School and was placed on probation until her eighteenth birthday. Aggrieved by the court’s decision, KG. appeals. She asserts the following issues for this Court’s review:

I. Whether the court erred in adjudicating the minor, K. G., as a delinquent child.
II. Whether the court erred by proceeding with the dispositional hearing and committing the child to the training school by failing to comply with the specific requirements of the law.
III. Whether the minor received effective assistance of counsel.
IV. Whether the case at bar is ripe for adjudication.

Finding no error, we affirm.

FACTS

¶ 2. On July 20, 2004, the Holmes County Youth Court prosecutor filed a petition in the Chancery Court of Holmes County asserting that, on April 13, 2004, K. G., a female minor child born on August 19, 1990, committed a simple assault against Jean A. Anderson, a teacher at Williams-Sullivan School, by pushing a desk in front of Anderson, causing her to fall and to injure her knee and back. On July 27, 2004, a hearing was held in the Youth Court of Holmes County to determine whether K. G.’s actions constituted a delinquent act. Robert G. Clark was appointed as counsel and represented K.G. during the hearing.

¶ 3. Anderson testified that, on April 13, 2004, KG. disrupted the class by turning over a granite top desk, which made a very loud noise. Consequently, Anderson walked toward the front of the classroom in order to press the “call light” to call the principal. Anderson testified that, as she walked by K. G., KG. pushed the desk in front of Anderson, in an effort to prevent her from pressing the call light, which caused Anderson to fall “real hard” on the floor.

¶ 4. On cross-examination, Anderson testified that after pushing the desk in front of her, K.G. did not apologize and acted as if nothing had happened. Anderson further testified that K.G. was suspended for three-days and given fifteen days at an alternative school as a result of the desk-pushing incident. Anderson also testified that during the first nine weeks of school K.G. had a grade point average of ninety-two, but that during the second nine weeks her grade point average dropped to sixty because she was not participating in class.

¶ 5. K. G.’s mother, Z. G., testified that K.G. was diagnosed with attention deficit disorder and had been on medication for the disorder for approximately five years. Z.G. further testified that K.G. visited a social worker once a month for approximately four or five years, and that during those visits she received psychological evaluations. Z.G. also testified that K.G. had been seeing a psychiatrist for a year and a half.

¶ 6. At the conclusion of the aforementioned testimony, the court found that the child’s therapy and medications were obviously not working because she assaulted a teacher. The court further determined that K. G.’s actions were a clear violation of the law and were consequently delinquent. Nonetheless, the court asked K. G.’s counsel whether he wanted KG. to testify, and K. G.’s counsel subsequently called her to the stand.

¶ 7. When asked why she pushed the desk in front of Anderson, K.G. replied that she just did it. She further testified that she did not need to go anywhere and that she would act differently in the future. K.G. also requested that she be put on probation.

¶ 8. In its ruling from the bench, the court ordered KG. to be committed to the Columbia Training School and, upon her release, be placed on probation until her eighteenth birthday. The court further ordered that the training school provide psychological evaluation and treatment for K.G. On July 28, 2004, the court entered an order memorializing the bench ruling.

ISSUES AND ANALYSIS

I. Whether the court erred in adjudicating the minor, K. G., as a delinquent child.

II. Whether the court erred by proceeding with the dispositional hearing and committing the child to the training school by failing to comply with the specific requirements of the law.

¶ 9. Under these two assignments of error, K.G. asserts that the court below failed to follow the provisions of Mississippi Code Annotated section 43-21-557 (Supp.2006), which provides in part that:

(1) At the beginning of each adjudicatory hearing, the youth court shall:
(a) verify the name, age and residence of the child who is the subject of the cause and ascertain the relationship of the parties, each to the other;
(b) ascertain whether all necessary parties are present and identify all persons participating in the hearing;
(c) ascertain whether the notice requirements have been complied with and, if not, whether the affected parties intelligently waived compliance in accordance with Section 43-21-507.

Mississippi Code Annotated section 43-21-557 also mandates that, at the beginning of each adjudicatory hearing, the youth court must inform the parties of the purpose of the hearing, the possible dispositions that may result, and that they have the right to counsel, the right to remain silent, the right to subpoena witnesses, the right to cross-examine adverse witnesses, as well as the right to appeal. Miss.Code Ann. § 43 — 21—557(l)(d)(e).

¶ 10. The adjudicatory hearing in the case sub judice began as follows:

THE COURT: Cause No. 26YC04 D0072 0099, the child, [K.G.] is here with her mother [Z. G.]; is that correct, Z. G.?
MS. COLLINS: Yes.
THE COURT: Also present is Ms. Jean A. Anderson, the alleged victim in this matter. Raise your hands to be sworn, please.
(Witnesses sworn.)
Go ahead, Mr. Gilmore.

Thus, the record reveals that the youth court failed to inform the parties of the purpose of the hearing and the possible dispositions that may result. The youth court further failed to inform K.G. that she had the following rights: the right to counsel, the right to remain silent, the right to subpoena witnesses, the right to cross-examine adverse witnesses, and the right to appeal.

¶ 11. The facts in the case sub judice are similar to those in In the Interest of L.C.A., 938 So.2d 300 (Miss.Ct.App.2006). In L.C.A, we held that, although the youth court failed to fully explain to the juvenile his rights, pursuant to Mississippi Code Annotated section 43-21-557, the youth court’s error was harmless because he was adequately represented by appointed counsel. Id. at 306 (¶ 18). In finding harmless error, we noted that the juvenile’s counsel cross-examined witnesses and called witnesses on behalf of the juvenile. Id. We further noted that the juvenile’s counsel did not complain at the adjudicatory hearing that the youth court failed to comply with Mississippi Code Annotated section 43-21-557. Id.

¶ 12. As in L.C.A., K.G. was represented at the adjudicatory hearing by her appointed counsel, Clark, who cross-examined Anderson. Clark also called Z.G. and K.G. to testify. The record further reveals that Z.G. and K.G. were served with a summons informing them that K.G. was being charged with the simple assault of Anderson. The summons also informed them that K.G. had the right to be represented by counsel and to subpoena witnesses. Morever, even though the youth court clearly failed to follow the mandates of Mississippi Code Annotated section 43-21-557, K.G. has failed to demonstrate any resulting prejudice or unfairness in the proceeding. Consequently, although we find that the youth court erred in not following statutory procedure, we also find that this error was harmless.

¶ 13. Under this assignment of error, K.G. also asserts that the youth court erred in its failure to established beyond a reasonable doubt that K.G. committed a delinquent act. We disagree. Mississippi Code Annotated section 97-3-7(1) (Rev. 2006) provides that “[a] person is guilty of simple assault if he ... attempts to cause or purposely, knowingly or recklessly causes bodily injury to another.” Mississippi Code Annotated section 43 — 21—105(j) (Supp.2006) defines a “delinquent act” as “any act, which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment or death.” During her testimony at the adjudicatory hearing, K.G. admitted that she pushed the desk in front of Anderson. K.G. never claimed that her actions were accidents or that she did not mean to injure Anderson. When asked why she committed the act, K.G. explained that she just did it. Given K.G.’s own admission, we find no merit to K. G.’s claim that her delinquency was not established beyond a reasonable doubt. This issue is without merit.

¶ 14. K.G. also asserts that the youth court erred by failing to consider factors set forth in Mississippi Code Annotated section 43-21-603(3)(a) (Supp.2006). We disagree. Mississippi Code Annotated section 43-21-603(3) provides the following:

(3) If the child has been adjudicated a delinquent child, before entering a disposition order, the youth court should consider, among others, the following relevant factors:
(a) The nature of the offense;
(b) The manner in which the offense was committed;
(c) The nature and number of a child’s prior adjudicated offenses;
(d) The child’s need for care and assistance;
(e) The child’s current medical history, including medication and diagnosis;
(f) The child’s mental health history, which may include, but not be limited to, the Massachusetts Youth Screening Instrument version 2 (MAYSI-2);
(g) Copies of the child’s cumulative record from the last school of record, including special education records, if applicable;
(h) Recommendation from the school of record based on areas of remediation needed;
(i) Disciplinary records from the school of record; and
(j) Records of disciplinary actions outside of the school setting.

¶ 15. The court considered the testimony of Anderson concerning the incident and Z.G. concerning KG.’s medical history and prior offenses. Based upon that testimony, the court determined that the child’s therapy and medications were not working because she assaulted a teacher. The court further determined that K. G.’s actions were a clear violation of the law and were consequently delinquent. We find no merit to K G.’s claim that the youth court erred in failing to follow Mississippi Code Annotated section 43-21-603(3)(a). This issue is without merit.

III. Whether the minor received effective assistance of counsel.

¶ 16. The standard of review for a claim of ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To bring a successful claim for ineffective assistance of counsel, pursuant to the court’s ruling in Strickland, the defendant must prove that his attorney’s overall performance was deficient and that this deficiency deprived him of a fair trial. Id. at 689, 104 S.Ct. 2052; Moore v. State, 676 So.2d 244, 246 (Miss.1996) (citing Per kins v. State, 487 So.2d 791, 798 (Miss.1986)). We must be mindful of the “strong but rebuttable presumption that an attorney’s performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.” Covington v. State, 909 So.2d 160, 162(¶ 4) (Miss.Ct.App.2005) (quoting Stevenson v. State, 798 So.2d 599, 602(¶ 6) (Miss.Ct.App.2001)). To overcome this presumption, the defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Woodson v. State, 845 So.2d 740, 742(¶ 9) (Miss.Ct.App.2003).

¶ 17. K.G. asserts that she received ineffective assistance of counsel because Clark did not file any pretrial motions, or subpoena witnesses, or compel or exclude production of evidence. Nevertheless, K.G. fails to establish that the result of the proceeding would have been different had Clark filed any pretrial motions, subpoenaed witnesses, or compelled or excluded the production of evidence. The record shows that Clark cross-examined Anderson and that he called Z.G. and K.G. to testify. We find that K.G. has failed to overcome the rebuttable presumption that an attorney’s performance falls within a wide range of reasonable professional assistance. Covington, 909 So.2d at 162. This issue is without merit.

IV. Whether the case at bar is ripe for adjudication.

¶ 18. Under this assignment of error, K.G. actually addresses the doctrine of mootness, rather than the doctrine of ripeness. Nonetheless, we decline to address this issue, as we have already addressed KG.’s other claims on the merits.

¶ 19. THE JUDGMENT OF THE YOUTH COURT OF HOLMES COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ„ CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J. AND CHANDLER, J.

IRVING, J.,

DISSENTING:

¶ 20. The majority finds no infirmity in the proceedings below and affirms the trial court’s finding of delinquency and commitment of K.G. to Columbia Training School. I cannot agree. The record in this case reveals, without a doubt, that K.G. did not get a fair and impartial hearing, and that the trial judge did not follow the mandatory statutory procedural safeguards before commencing the adjudicatory and disposi-tional hearings which resulted in K.G. being sentenced to the training school. Therefore, I dissent.

¶ 21. I will first discuss the statutory procedural guidelines for both the adjudicatory and dispositional hearings, which the youth court trial judge failed to follow. Then I will discuss the evidence and the trial judge’s predetermined disposition, which I believe require that the adjudication of delinquency be reversed and remanded.

¶ 22. The majority acknowledges that the trial judge failed to follow the order of proceedings for adjudicatory hearings as mandated by Mississippi Code Annotated section 43-21-557 (Rev.2004). Nevertheless, relying on this Court’s decision in In re L.C.A., 938 So.2d 300 (Miss.Ct.App. 2006), the majority finds that this failure constitutes harmless error.

¶23. In In re L.C.A., this Court, relying upon In re T.L.C., 566 So.2d 691 (Miss.1990), did not specifically find that the youth court failed to follow the requirements of section 43-21-557. We found, however, that if any error occurred with respect to the procedure employed, it was harmless, as the youthful defendant was ably represented by a court-appointed public defender who did not complain about the youth court’s failure to follow the procedure dictated by section 43-21-557. In re L.C.A, 938 So.2d at 306 (¶¶ 18-19).

¶ 24. I dissented in In re L.C.A. and distinguished In re T.L.C. I will not repeat that discussion here except to say that, unlike In re T.L.C., this case involves a finding of delinquency, and I know of no Mississippi Supreme Court precedent holding that in delinquency adjudications, it is harmless error not to follow the procedural requirements of section 43-21-557. As the majority notes, the trial judge did not follow the procedural requirements of section 43-21-557, in that the trial judge failed to inform KG. of certain basic constitutional rights. To be clear, the record reflects that the trial judge did not explain to K.G. or her mother any dispositional alternatives or the rights specified in section 43-21-557. The trial judge began the adjudicatory hearing after only ascertaining the presence of K.G., her mother, and the victim. This is wholly unacceptable. Surely, the legislature intended to afford certain rights and safeguards to youthful defendants, such as are set forth in section 43-21-557. I will not lend my voice or authority of office to judicially annihilate what the legislature, in its wisdom and thoughtful deliberations, determined should take place in our youth courts before a youthful defendant is adjudicated a delinquent and incarcerated in one of our training schools.

¶ 25. I now turn to a discussion of the evidence adduced during the adjudicatory phase of the proceedings. During this phase, the State offered only one witness, the teacher victim. Immediately after the victim related, during direct examination, her story as to what happened, the trial judge interrupted the proceedings:

THE COURT: I’ve heard enough to find that this child is a delinquent child in this. By further examination on Mr. Clark’s part that it could be offset [sic]. You can tender this witness for cross-examination at this point. You may proceed, Mr. Clark.
MR. CLARK: I would like to call Ms.—
THE COURT: You can cross-examine her if you like. I’m not saying that you have to, but you can start right now with cross-examination to offset my findings of delinquency at this point unless it is offset.

Before the court’s interruption, the victim had testified that K.G. turned over a desk-chair and pushed it toward her, causing her to trip and fall sideways onto the floor. During cross-examination, the victim acknowledged that she did not know if K.G. was trying to trip her, but thought that K.G. was certainly trying to prevent her from calling anyone to report what KG. had done.

¶ 26. Upon the conclusion of the adjudicatory hearing, the trial judge immediately commenced the dispositional hearing without first informing the parties of the purpose of the hearing as mandated by section 43-21-603 (Rev.2004). But more importantly, the trial judge entered the disposition order without first considering the factors specified in subsection (3) of section 43-21-603. Had the trial judge thoughtfully considered the referenced factors, it would seem rather improbable that he could arrive at the disposition that he did.

¶27. In support of this point, and to give a clear picture of KG.’s situation, I set forth in great detail the testimony given during the dispositional hearing, starting with KG.’s mother:

Q. Ms. Z.G., you have heard the testimony here today, do you believe that it’s in the best interest of your daughter for her to go to training school?
A. No.
Q. You’ve heard the testimony of [the victim] when she stated that she is very disrespectful of you. Do you have any problems with your daughter at home?
A. No.
Q. Have [sic] your daughter been diagnosed with a medical condition?
A. Yes.
Q. What medical conditions have [sic] she been diagnosed with?
A. Attention Deficit Disorder. She was put on medication for about five years or more.
Q. She’s been on—
A. She’s had counseling. She’s seeing a psychiatrist—
Q. Psychiatrist and a psychologist?
A. Yes. Every month—
THE COURT: Every once in a while—
THE WITNESS: No, I said every month we go to Ridgeland to their clinic, and visit the social worker. Then this two for one help is working with her and my son. And one was just at the house yesterday, a social worker came by to see me.
THE COURT: How long has she been having that psychological evaluation help that you’ve talking about? How long has that been going on?
THE WITNESS: At least four or five years.
THE COURT: Okay. That’s not cutting the mustard. Four or five years, and she still throws a desk — or pushes a desk on the teacher and injured the teacher. Her acute attitude at the school — She’s not getting the help that she needs where she is now. It’s not working.
THE WITNESS: She didn’t take her medication that day—
THE COURT: It’s not working. So what else. Mr. Clark?
BY MR. CLARK: (Attorney for defendant)
Q. Ms. Z.G., on this day, she had been prescribed medication, right? And was she on medication for the time that this incident took place?
A. Yes, but I also had someone to stay with her. My husband had a stroke and I was at the hospital with him, and I had someone watching her that day. Most of the time. She had been staying with family members, because my husband had a stroke at the time of this.
Q. So, it is possible that during this time this incident happened, she was not taking her medication because of the fact that your husband was ill and you weren’t there to make sure those medications were taken?
A. When she takes this medicine, she’s a better person. She’s more controlled. And I must say, the only reason she was outside the class was because she was able — I asked [the victim] was she able to keep up or did she want her back in the class, and [the victim] agreed that she didn’t want her back in the classroom. They wouldn’t put her back in there.
Q. On which occasion are we talking about?
A. After—
Q. After this incident?
A. Uh-huh. (Affirmative response.)
Q. Did she go back to [the victim’s] class after this incident?
A. No.
MS. HUNTER: What is the reason for the (inaudible) teacher support the counselors there on hand.
A. Ms. Leach is the counselor, and Ms. (inaudible.)
MS. HUNTER: (Inaudible.)
A. And it’s one more that works there. She was like (inaudible.)
MS. HUNTER: Were they doing a lot of interventions at the school?
A. Yes, and coming to my house.
THE COURT: How long have they been intervening at the school on the child with psychiatric help?
A. They had just come in.
THE COURT: What period of time?
A. It just started in August. He was brought in, and the lady that was there before Ms. Leach was Ms. (Inaudible) And she just came in, you know, last — the second semester I think when she came and started these treatments (Inaudible.) But she’s not there and Ms. Leach just took over.
THE COURT: Who?
A. Ms. Leach. She just took over about April.
THE COURT: What’s her private title? What’s her credentials? Ms. Leach, what is she a psychiatrist?
A. She a[sic] social worker.
THE COURT: She’s a what?
A. A social worker.
THE COURT: Social worker. Is she a psychiatrist?
A. She’s a—
THE COURT: Who is the psychiatrist that’s working with this child right now?
A. Dr. Gutlett. He’s from Ridgeland Clinic.
THE COURT: And how long has he been working with your child?
A. About a — almost a year and a half.
THE COURT: See, that’s not getting it for some reason. I’m looking at this — -I’ll look at an alternative to training school provided it’s a deep psychiatric care if that’s what she needs, but if it’s just an old attitude problem, then that can be dealt with by going to training school.
BY MR. CLARK:
Q. Ms. Z.G., has K.G. ever been before the Youth Court prior to this incident?
A. No.
Q. So this is the first time she’s ever been before Youth Court?
A. Yes.
MR. CLARK: May it please the Court, on behalf of Ms. K.G., I’m going to recommend probation. This is the first incident that she has had before the Youth Court, and we should defer to restricted means in terms of correcting behavior of other youth and probation should be given a chance to correct that probation with the continued psychological work, she should be given a chance being on probation and correcting her behavior with her knowing that she’s on probation.
MR. GILMORE: We had her brother in here, I think what two weeks ago or what?
MS. HUNTER: About two weeks ago.
MR. GILMORE: And we put him on those guidelines and was supposed to report back in two months.
MS. HUNTER: Yes.
MR. GILMORE: (Inaudible.)
MR. CLARK: (Inaudible.)
MS. HUNTER: (Inaudible.)
THE COURT: If y’all don’t have anything else, then let me make a ruling.
MR. GILMORE: He did appear to have a problem, but now he’s going to the same people that she’s describe [sic] that she’s going to now. I don’t know whether it’s—
THE COURT: Well, I’m not having any confidence in what they’re doing. I’m not faulting them. What I’m saying is what she’s been going through is not working — If it is, then she wouldn’t have assaulted this teacher. She assaulted that teacher right there. That desk didn’t just jump up and run over there and this lady’s way, when all she’s trying to do is to chair her class and fulfill her responsibilities. She ought not have to open her mouth with nothing but sit down, be quiet, I’m going to go hit this button for somebody to come down there and help me. And anything that they take beyond that is clear violation of the law, and it’s a clear delinquency; and it’s as clear (inaudible).
So, I’m going to go ahead with the Order of the Court being that — Did you want her to testify for any reason? I’ll reopen that so I can — I’m just asking the question now.
MR. CLARK: I—
THE COURT: I’m not saying she should. I’m just asking the question.
MR. CLARK: (Inaudible.)
[THE VICTIM]: I would like to know why K.G. acts like that with me?
THE COURT: Well, I don’t know that I know, but I know it happened, ma’am, and so — What do you want?

¶ 28. It seems rather obvious from the extensive colloquy between the trial court and K.G.’s mother that the trial judge had already made up his mind that the only disposition was confinement in the training school. Further, it is strikingly obvious that the trial judge did not consider any of the factors set forth in section 43-21-603, subsection (3). For these reasons, I dissent. I would reverse and remand this case for further proceedings consistent with the statutory procedural requirements and guidelines set forth in sections 43-21-557 and 43-21-603.

KING, C.J., AND CHANDLER, J„ JOIN THIS SEPARATE WRITTEN OPINION.

      . This section reads in pertinent part as follows:
      (1) At the beginning of each adjudicatory hearing, the youth court shall:

        (a) verify the name, age and residence of the child who is the subject of the cause and ascertain the relationship of the parties, each to the other;
      (b) ascertain whether all necessary parties are present and identify all persons participating in the hearing;
      (c) ascertain whether the notice requirements have been complied with and, if not, whether the affected parties intelligently waived compliance in accordance with Section 43-21-507;
      (d) explain to the parties the purpose of the hearing and the possible dispositional alternatives thereof; and
      (e) explain to the parties:
      (i) the right to counsel;
      (ii) the right to remain silent;
      (iii) the right to subpoena witnesses;
      (iv) the right to cross-examine witnesses testifying against him; and
      (v) the right to appeal.

      . (1) At the beginning of each disposition hearing, the judge shall inform the parties of the purpose of the hearing.
      (2) All testimony shall be under oath unless waived by all parties and may be in narrative form. The court may consider any evidence that is material and relevant to the disposition of the cause, including hearsay and opinion evidence. At the conclusion of the evidence, the youth court shall give the parties an opportunity to present oral argument.
      (3) If the child has been adjudicated a delinquent child, before entering a disposition order, the youth court should consider, among others, the following relevant factors:
      (a) The nature of the offense;
      (b) The manner in which the offense was committed;
      (c) The nature and number of a child’s pri- or adjudicated offenses;
      (d) The child’s need for care and assistance;
      (e) The child’s current medical history, including medication and diagnosis;
      (£) The child's mental health history, which may include, but not be limited to, the Massachusetts Youth Screening Instrument version 2 (MAYSI-2);
      (g) The child's cumulative record from the last school of record, including special education records, if applicable;
      (h) Recommendation from the school of record based on areas of remediation needed;
      (i) Disciplinary records from the school of record; and
      (j) Records of disciplinary actions outside of the school setting.

      . Ms. Hunter is the Youth Court Services Counselor.