author: GRIFFIS, P.J., CARLTON, J.,

text:
    Olivia D. JEFFERSON a/k/a Olivia Jefferson, Appellant v. CITY OF KOSCIUSKO, Mississippi, Appellee.
    No. 2011-CA-01516-COA.
    Court of Appeals of Mississippi.
    April 9, 2013.

      Rosalind Hayden Jordan, attorney for appellant.
    John E. Shaw, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Olivia Jefferson appeals the forfeiture of her vehicle. Olivia’s vehicle was seized after the arrest of her brother, Willie Joe Jefferson. Olivia raises four issues: (1) the forfeiture violated Mississippi Code Annotated section 41-29-153(a)(4)(D) (Rev. 2009); (2) the forfeiture hearing was premature because Willie’s criminal action was still pending; (3) the forfeiture was inappropriate when the substance recovered from the vehicle was obtained through an unlawful search; and (4) the forfeiture violated the Excessive Fines Clause of the Mississippi Constitution. Finding reversible error, we reverse and render the circuit court’s judgment.

FACTS

¶ 2. In October of 2008, Olivia purchased a Chevrolet Tahoe. Willie frequently drove the Tahoe. On January 20, 2011, Officer Jimmy Earl Evans Jr., with the Kosciusko Police Department, saw Willie driving the Tahoe and noticed the tag was expired. Officer Evans initiated a stop, and Willie pulled into the driveway of his residence. Willie got out, locked the door, and walked toward Officer Evans.

¶ 3. Officer Evans determined that Willie did not have a valid license and placed him under arrest for no license, no insurance, and an expired tag. Officer Evans placed Willie in the patrol car. Officer Herbert Dew then arrived. Officer Dew and Officer Evans searched the Tahoe. They found a bag of marihuana under the passenger seat.

¶ 4. Willie was charged with felony possession of marihuana under Mississippi Code Annotated section 41-29-139(c)(2)(C) (Rev.2009). Officer Brice Cole seized and drove the Tahoe to the Kosciusko Police Department.

¶ 5. On January 21, 2011, Willie was served with a notice of intent to forfeit seized property. On February 16, 2011, the City of Kosciusko filed a complaint for forfeiture against Olivia and Willie. On March 28, 2011, Olivia filed her answer. The circuit court entered a default judgment against Willie on May 10, 2011.

¶ 6. On August 9, 2011, Willie was indicted for possession of more than thirty grams but less than 250 grams of marihuana under section 41-29-139(c)(2)(C).

¶ 7. On August 24, 2011, the circuit court held a hearing on the forfeiture complaint. Six law enforcement officers testified. The Mississippi Crime Laboratory stated in its report and at the hearing that the substance obtained during the search was 238.6 grams of marihuana.

¶ 8. The circuit court found that there was evidence that Olivia drove the Tahoe, and there was “no indication she had knowledge of her brother’s drug activity.” However, the circuit court found that Willie had dominion and control over the Tahoe such that Olivia was a mere “straw man,” and Willie was the true owner. By an order entered on September 6, 2011, the circuit court granted the forfeiture of Olivia’s Tahoe.

¶ 9. On September 28, 2011, in Willie’s criminal action, the circuit court held a hearing on Willie’s motion to suppress the marihuana. Willie argued that the search ■violated his Fourth Amendment rights. Officers Dew and Evans testified about the police department’s policy to search vehicles of any person under arrest. The circuit court held that the search of the Tahoe was an unlawful search. The circuit court granted Willie’s motion to suppress, and the criminal charges against Willie were dismissed with prejudice.

¶ 10. Olivia filed her notice of appeal on October 6, 2011.

STANDARD OF REVIEW

¶ 11. “The appropriate standard of review in forfeiture cases is the familiar substantial evidence/clearly erroneous test.” Galloway v. City of New Albany, 735 So.2d 407, 410 (¶ 15) (Miss.1999) (citation omitted). We “will not disturb a circuit court’s findings unless it has applied an erroneous legal standard to decide the question of fact.” Id. We review questions of law de novo.

ANALYSIS

Validity of Forfeiture

¶ 12. The City’s complaint for forfeiture claimed that the “2007 Chevrolet Tahoe ... is subject to forfeiture under the provisions of section 41-29-153(a)(4) of the Mississippi Code Annotated ... having been used, or intended for use, to transport or to facilitate the transportation, sale, receipt, possession or concealment of controlled substances or property described in section 41-29-153(a)(2).... ” Mississippi Code Annotated section 41-29-153(a) (Rev.2009), in relevant part, provides:

The following are subject to forfeiture:

(1) All controlled substances which have been manufactured, distributed, dispensed or acquired in violation of this article or in violation of Article 5 of this chapter;
(2) All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this article or in violation of Article 5 of this chapter;
(3) All property which is used, or intended for use, as a container for property described in paragraph (1) or (2) of this subsection;
(4) All conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of property described in paragraph (1) or (2) of this subsection; however
D. A conveyance is not subject to forfeiture for a violation of section 41-29-139(c)(2)(A), (B) or (C)....

The City’s complaint cites two subsections, 41-29-153(a)(2) and (4). The City, in this appeal, does not contend that subsection (a)(2) applies. Instead, the Tahoe is a vehicle and is specifically considered for forfeiture under section 41-29-153(a)(4).

¶ 13. Olivia argues the forfeiture was not valid under the forfeiture statute. She claims that the property was excluded from forfeiture under section 41-29-153(a)(4)(D). Thus, the dispositive issue is the quantity of marihuana found when Willie was stopped and arrested. Willie was indicted under section 41 — 29—139(c)(2)(C), which provides:

(2) Marihuana ... in the following amounts shall be charged and sentenced as follows:
(C) More than thirty (30) grams but less than two hundred fifty (250) grams may be fined not more than One Thousand Dollars ($1,000.00), or confined in the county jail for not more than one (1) year, or both; or fined not more than Three Thousand Dollars ($3,000.00), or imprisoned in the State Penitentiary for not more than three (3) years, or both....

The Mississippi Crime Laboratory determined that the marihuana recovered from the vehicle in the search was 238.6 grams.

¶ 14. The City of Kosciusko argues that the “proper charge for this defendant for the possession of 238.6 grams of marihuana would be under 41-29-139(c)(2)(D),” which provides:

(2) Marihuana ... in the following amounts shall be charged and sentenced as follows:
(D) Two hundred fifty (250) grams but less than five hundred (500) grams, by imprisonment for not less than two (2) years nor more than eight (8) years and by a fine of not more than Fifty Thousand Dollars ($50,000.00)....

Miss.Code Ann. § 41-29-139(c)(2)(D) (Rev. 2009). The City does not explain how or why the proper charge would be under subsection (c)(2)(D) instead of subsection (c)(2)(C). The City does not point to any evidence that would support its argument that Willie possessed was more than 250 grams of marihuana when he was arrested and the vehicle was seized.

¶ 15. The trial court’s decision was based on One Ford Mustang Convertible v. State ex rel. Clay County Sheriff’s Department, 676 So.2d 905, 906 (Miss.1996), where the court determined that a “straw person” was not the owner of the automobile for the purpose of the innocent-owner defense in section 41-29-153(a)(4)(B). There, the controlled substance was cocaine, and section 41-29-139(c)(2)(C) was simply not applicable. The dissent cites this case as authority but does not explain how it applies to the case before us.

¶ 16. The forfeiture statute, section 41-29-153(a)(4)(D), expressly excludes the forfeiture of property based on a violation of section 41-29-139(c)(2)(C). Here, the indictment and the Mississippi Crime Laboratory’s report clearly establish that the amount of marihuana recovered in the search was 238.6 grams. Thus, the proper charge would be under section 41-29-139(c)(2)(C), and not under section 41-29-139(c)(2)(D). As a matter of law, the quantity of marihuana recovered and charged was statutorily excluded from forfeiture. Accordingly, we find as a matter of law that the circuit court erred when it granted the forfeiture. We reverse and render on this issue.

¶ 17. The dissent agrees with this analysis but goes much further to find: “However, the evidence supported that Olivia constituted a straw man owner over the course of several years and that the vehicle facilitated the ongoing sale, receipt, or possession of illegal controlled substances.” The dissent does not cite a statute or case that is authority for this proposition. Mississippi Code Annotated section 41-29-153 (Rev.2009) only authorizes the forfeiture of property in certain circumstances. The statute does not allow for a forfeiture because law enforcement believes it may have been used in the “ongoing sale, receipt, or possession of illegal controlled substances.” The statute provides for an exception when the amount of the controlled substance seized is less than 250 grams of marihuana. The dissent admits that this exception applies, yet wants to allow forfeiture based on some authority other than the relevant law. We respectfully disagree.

¶ 18. Because the first issue is disposi-tive, the remaining issues are moot.

¶ 19. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ„ CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

dissenting:

¶ 20. I respectfully dissent from the majority’s opinion in this case. Olivia Jefferson appeals the civil forfeiture of her vehicle. I would affirm the judgment of the trial court because the evidence in the record and the findings of the trial court reflect that the City met its burden to prove the allegations set forth in the complaint for civil forfeiture of the vehicle at issue. The record and the findings of the trial judge show Olivia knowingly served as a straw man for her brother who, while engaging in illegal drug activity, exercised dominion and control over the vehicle over the course of several years, using the vehicle for the facilitation of drug activity by the vehicle’s use in the transportation, sale, receipt, possession, or concealment of illegal controlled substances. I would therefore affirm the adjudged civil forfeiture. The subject of the forfeiture is the vehicle at issue, the red Chevrolet Tahoe, and the forfeiture complaint alleged the vehicle was used to engage in forbidden activity in violation of Mississippi Code Annotated section 41-29-153(a)(4) (Rev. 2009) for having been used, or intended for use, to transport or to facilitate the transportation, sale, receipt, possession, or concealment of controlled substances or property described in Mississippi Code Annotated section 41-29-158(a)(2) (Rev. 2009). As stated, the findings and judgment of the trial court, as well as the evidence in the record, show that the City met its burden to prove that the vehicle was used to engage in the prohibited uses, and Olivia failed to show that such use was without her consent.

¶ 21. The separate and distinct criminal proceedings reflect the State’s prosecution of Olivia’s brother for the quantity of marihuana he possessed on one particular occasion on January 20, 2011, upon being stopped for an expired tag. The State’s prosecution of him as an individual fails to impact the separate in rem proceeding against the vehicle for its use in the facilitation of forbidden criminal drug activities over the course of several years and its resulting forfeiture. A civil forfeiture constitutes an in rem proceeding, and the action proceeds upon a legal fiction that the property itself is guilty of wrongdoing. In contrast, a criminal prosecution commences against a person rather than a thing. The forfeiture before us consists of a civil in rem proceeding against a “thing,” a vehicle, and not a criminal prosecution against an individual to determine his or her guilt and imposition of punishment. The civil forfeiture proceedings are not dependent upon whether criminal charges proceed against an individual or the outcome of any such prosecution.

¶22. Civil forfeiture proceedings and criminal prosecutions, resulting from a violation of our state’s drug laws, constitute separate and distinct proceedings. Mississippi Code Annotated section 41-29-179(2) (Rev.2009) sets forth the procedures and burden of proof applicable in civil forfeiture actions for property, including conveyances such as vehicles seized due to their use in the transport, facilitation of transportation, sale, possession, or concealment of illegal controlled substances as set forth in section 41-29-153. In this case, the City met its burden of proof to show by a preponderance of the evidence that the property forfeited, the red Tahoe vehicle, constituted a conveyance of property that was used or intended for use or in any manner facilitate the transport, sale, receipt, possession, or concealment of illegal controlled substances pursuant to section 41-29-153.

¶ 23. In civil forfeiture cases, the relevant question is whether, given all the evidence taken together, a rational trier of fact could have found that the funds were the products of or instrumentalities used in violations of the state’s uniform controlled substance laws. Moreover, our civil forfeiture statutes place the burden on the individual claiming ownership to prove that he or she possessed no knowledge of and did not consent to the vehicle’s, or any other conveyance’s, use in any manner to facilitate the sale, transport, receipt, possession, or concealment of illegal controlled substances. The evidence in the record shows that the state’s narcotics task force received a tip from a confidential informant in 2009 that an African American male was selling drugs out of the vehicle at issue. The record provides ample evidence in support of the trial judge’s findings that Olivia knowingly constituted nothing more than a “straw man owner” of the vehicle to avoid the potential of losing it in the event her brother was arrested, and that in addition to paying for the vehicle, her brother enjoyed actual ownership as reflected in his exercise of possession, dominion, and control over the vehicle. The evidence shows that with her brother’s money, Olivia purchased the vehicle in October 2008 and that in 2009, the narcotics task force received a tip that a male was selling drugs out of that vehicle. The narcotics task force maintained surveillance on the activities of the vehicle from 2009 to January 2011 when Olivia’s brother was arrested for having an expired tag. Sufficient evidence was presented to prove ongoing facilitation of drug activity by use of the vehicle for the transport, sale, possession, and concealment of illegal drugs as set forth in section 41-29-153(a)(1) — (2).

¶ 24. The majority finds that since the State indicted Olivia’s brother for a violation of Mississippi Code Annotated section 41 — 29-139(c)(2)(C) (Supp.2012) for the marihuana found in the Tahoe vehicle on the particular date of his arrest, January 20, 2011, then the City could not pursue a forfeiture of the vehicle due to the vehicle’s facilitation of illegal drug transport, use, or possession. The majority concludes that section 41-29-153(a)(4)(D) (Rev.2009) does not allow civil forfeitures for violations of Mississippi Code Annotated section 41-29-139(c)(2)(A), (B), or (C) (Supp.2012). The majority correctly acknowledges that testimony reflects that at the particular time when Olivia’s brother was arrested for having an expired tag, the amount of marihuana found in his possession was 238.6 grams. However, the evidence supported that Olivia constituted a straw man owner over the course of several years and that the vehicle facilitated ongoing sale, receipt, or possession of illegal controlled substances.

¶25. The record shows that Olivia’s brother gave her $27,000 to purchase the vehicle in 2008 and then later bought her another vehicle. Olivia testified that the vehicle at issue was garaged in Attala County, where her brother lived. The evidence also showed, and the trial judge found, that Olivia possessed a limited income with support from Supplemental Security Income and food stamps, and that after expenses, little remained. The trial court found that even though she possessed limited income, Olivia claimed to have purchased rims and big tires for the vehicle for $3,700 and to have paid the insurance on the vehicle. The record shows that Olivia claimed to own two vehicles her brother gave her money to purchase, and she claimed to pay the insurance on both. She also testified that her brother gave her money periodically.

¶ 26. The trial court found that the car was issued a tag from Attala County. The evidence in the record shows that the address provided for the vehicle tag was the address of Olivia’s brother, not Olivia, and the tag was issued from Attala County, where Olivia’s brother lived, rather than Holmes County, where Olivia resided. The evidence and the trial court’s findings also show that Olivia’s brother engaged a repairman on two occasions to work on the vehicle and to change the rims. Olivia claimed she painted the vehicle its current bright red color after she bought the vehicle with her brother’s money. .

¶ 27. Significantly to the issue in this case, eight different law enforcement officers testified that the they had seen an African American male driving the vehicle from 2009 to the time of the seizure, but they had never seen a female driving the vehicle. The testimony also showed that the vehicle had been previously placed under surveillance due to a tip that a male was selling drugs out of the vehicle. The trial court also found that the testimony showed that Olivia’s brother claimed to be the owner of the vehicle on two distinct occasions. On one occasion, he claimed ownership when reporting damage from vandalism occurring at the Lexington Christmas parade to the chief of police. Olivia’s brother also claimed to be the owner of the vehicle when an officer stopped him for an expired tag, giving rise to the sequence of events leading to the forfeiture in this case.

¶ 28. After reviewing the evidence, the trial court found that Olivia constituted a straw man “owner” who was attempting to claim ownership in the event of a future forfeiture. More specifically, and with respect to her credibility as to ownership, the trial court found that Olivia knowingly placed the vehicle in her name so that she could claim ownership if and when her brother was arrested, and the vehicle would not be lost. Olivia failed to rebut the evidence of her brother’s dominion, control and actual ownership of the vehicle for illegal drug activities, and the trial court properly found that the evidence showed that Olivia’s brother actually constituted the individual who exercised possession, dominion, and control over the vehicle.

¶ 29. Based on the foregoing, I respectfully dissent.

      . See Smith v. State, 716 So.2d 1076, 1080-81 (¶¶ 24-30) (Miss.1998); Miss. Bureau of Narcotics v. Harrison Cnty., 623 So.2d 267, 268-70 (Miss. 1993); State ex rel. Miss. Bureau of Narcotics v. Lincoln Cnty., 605 So.2d 802, 803-04 (Miss.1992).

      . See State v. Fleming, 726 So.2d 113, 114-15 (¶ 7) (Miss.1998); Lincoln Cnty., 605 So.2d at 803-04.

      . See Smith, 716 So.2d at 1080-81; Harrison Cnty., 623 So.2d at 268-70.

      . Evans v. City of Aberdeen, 926 So.2d 181, 183 (¶ 5) (Miss.2006); Hickman v. State ex rel. Miss. Dep’t of Pub. Safety, 592 So.2d 44, 46-48 (Miss.1991).

        .See Evans, 926 So.2d at 183 (¶ 5); Hickman, 592 So.2d at 46.

      . Mere possession of thirty grams or less of marihuana by an individual on one occasion. Possession on different occasions, or dates, would be charged separately.

      . Mere possession by an operator of a vehicle of one to thirty grams on one occasion.

      .Mere possession by an individual of more than thirty grams but less than 250 grams on one occasion.

      . See One Ford Mustang Convertible v. State ex rel. Clay Cnty. Sheriffs Dep’t, 676 So.2d 905, 907-08 (Miss. 1996) (straw man not owner of automobile for purposes of innocent owner defense to forfeiture): Parcel Real Prop. v. City of Jackson. 664 So.2d 194, 200 (Miss.1995) (finding that property owners must do "all that is reasonably expected to prevent the proscribed use of the property” and explaining that "reasonable affirmative conduct,” not heroics, must be exercised to prevent the property from being used to facilitate illegal drug transactions).


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Jason LINDSEY, Appellant v. Tania (Lindsey) WILLARD, Appellee.
    No. 2011-CA-01357-COA.
    Court of Appeals of Mississippi.
    April 9, 2013.

      Luanne Stark Thompson, Aberdeen, attorney for Appellant.
    Robert W. Davis Jr., Tupelo, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The Itawamba County Chancery Court granted Tania Willard’s motion to modify custody of her son, Tyler Lindsey. Tyler’s father, Jason Lindsey, claims the chancellor erred when she found a material change in circumstances adverse to Tyler’s best interests. Additionally, Jason claims that the investigatory guardian ad litem failed to properly conduct her investigation. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jason and Tania were divorced in December 2004. They agreed that they would share joint legal and physical custody of their eight-year-old son, Tyler. However, there was no set visitation or custody schedule. Jason was ordered to pay Tania $25 per week in child support.

¶ 3. The next year, both Jason and Tania moved for primary custody of Tyler. The chancellor did not modify the joint legal and physical custody arrangement, but Jason received physical custody of Tyler during the school year. Tania received custody of Tyler during the summer months. Additionally, neither party was obligated to pay child support.

¶ 4. In April 2010, Tania again moved to modify custody of Tyler. Jason responded with a counterclaim for contempt regarding unpaid medical bills. Jason also moved to modify the visitation schedule.

¶ 5. The parties went before the chancellor in December 2010. During that hearing, the chancellor heard testimony that Jason planned to divorce his new wife, Mandy Galloway Lindsey, who had moved out of Jason’s home. According to multiple witnesses, Mandy was the cause of great instability with Jason. There were allegations that Mandy was having another man’s baby, that she had numerous paramours, and that Jason would pay Mandy’s bills while his own bills went unpaid. However, Tyler never testified negatively about Mandy.

¶ 6. There was also testimony that Tyler, who was thirteen years old at the time, spent extended periods of time alone because of Jason’s work schedule. Kathleen Hoffman, who worked in the lunchroom at Tyler’s school, testified that Tyler often did not have money for lunch. Tyler testified that he preferred to remain with Jason. After the December 2010 hearing, the chancellor entered an interim order. The chancellor declined to modify custody at that time, but the chancellor reserved the right to revisit the allegations after a hearing at a later date.

¶ 7. The parties reconvened for the second hearing in May 2011. At that hearing, the chancellor heard testimony that Tyler was no longer allowed to spend time with his grandfather, Jimmy, because of a disagreement between Jason and Jimmy. Furthermore, Jason and Mandy were considering rekindling their relationship. Rather than leaving Tyler with Jimmy, Jason often left Tyler with Mandy, or Tyler spent the night with friends. After the May 2011 hearing, the chancellor appointed a guardian ad litem to act in an investigatory capacity. The guardian ad litem later recommended that the chancellor modify custody of Tyler so that Tania had physical custody of him during the school year and Jason had physical custody during the summer. During the final hearing, Jason’s attorney vigorously cross-examined the guardian ad litem. Jason and Mandy also testified in an attempt to clarify or dispute the guardian ad litem’s recommendations and findings. Again, Tyler reaffirmed that he preferred to live with Jason. Additional facts will be discussed in the analysis, as necessary.

¶ 8. Ultimately, the chancellor found that there had been a material change in circumstances adverse to Tyler’s best interests and awarded Tania custody of Tyler during the school year. Additionally, Jason received custody of Tyler during the summer. Jason appeals and claims the chancellor erred when she found that there had been a material change in circumstances adverse to Tyler’s best interests. Jason also claims the guardian ad litem failed to adequately conduct her investigation.

STANDARD OF REVIEW

¶ 9. In domestic-relations cases, our standard of review is limited. In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010). The findings of the chancellor “will not be disturbed unless [they are] manifestly wrong or clearly erroneous.” Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009) (quoting Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002)). “Under the standard ... utilized to review a [chancellor’s findings of fact, particularly in the areas of divorce, alimony and child support, [the appellate court] will not overturn the [chancellor’s decision] on appeal unless [her] findings were manifestly wrong.” Wood, 35 So.3d at 512 (¶ 8) (quoting Duncan v. Duncan, 774 So.2d 418, 419 (¶ 4) (Miss.2000)).

ANALYSIS

I. MATERIAL CHANGE IN CIRCUMSTANCES

¶ 10. Jason claims the chancellor erred when she held that Tania satisfied the burden of proof necessary to modify custody of Tyler. In her opinion and final judgment, the chancellor stated:

Tyler has continued to be fully responsible for preparing himself for school, usually being left alone by [Jason] for periods in excess of an hour prior to school. Tyler also continues to routinely spend approximately four hours alone after school prior to [Jason]’s return home from work when he is working the day shift. When [Jason] is working the night shift, Tyler is left in the care of [Jason]’s ex-wife, Mandy Galloway, who has an unstable relationship with [Jason], including having paramours at [Ja-sónos residence while Tyler is present. Taking into account the totality of the circumstances, including the continuing increasing instability in [Jason]’s residence and the child’s testimony regarding the conditions which have grown worse during the course of this litigation, the Court finds [Tania] has satisfactorily demonstrated a material and substantial change in circumstances that adversely affects the child.

¶ 11. To successfully move to modify custody of a child, a noncustodial parent must prove “(1) a material change in circumstances has occurred since the issuance of the judgment or decree sought to be modified, (2) the change adversely affects the welfare of the child, and (3) the proposed change in custody would be in the best interest of the child.” Cantin v. Cantin, 78 So.3d 943, 948 (¶ 15) (Miss.Ct.App.2012) (citation omitted). “The chancellor must consider the totality of the circumstances to determine whether there was a material change in circumstances.” Id. (citation and quotation omitted).

¶ 12. In appeals from child-custody decisions, our polestar consideration, like the chancellor’s, must be the best interest of the child. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App. 2009) (quoting Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002)). “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So.2d 944, 950 (¶ 14) (Miss.Ct.App.2004) (quoting Bower v. Bower, 758 So.2d 405, 412 (¶ 33) (Miss.2000)). “The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each.” Barnett v. Oathout, 883 So.2d 563, 566 (¶ 6) (Miss.2004).

¶ 13. Jason’s argument is predicated in part on the fact that the chancellor did not find that there had been a material change in circumstances adverse to Tyler’s best interests after the first hearing during December 2010. Jason reasons that because the chancellor had declined to find a change in circumstances based on the evidence presented during the December 2010 hearing, the chancellor could not have reasonably found that a change was warranted after the July 2011 hearing.

¶ 14. Jason misinterprets the interim order that the chancellor issued after the December 2010 hearing. Although the chancellor stated that Tania had not demonstrated a material change in circumstances adverse to Tyler’s best interests, the chancellor also stated that “this matter shall be set for review to determine the status of the situation at that time.” The chancellor also issued a supplemental opinion after her interim order. In her supplemental opinion, the chancellor stated: “[0]ut of an abundance of caution ... this cause shall be reviewed at the conclusion of the school year ... with neither party being prejudiced by the Court’s present decision.” We interpret the chancellor’s interim order and supplemental opinion as a temporary decision reserving the right to review the matter de novo during a subsequent hearing. A chancellor has the discretion to make temporary findings with the intent to conduct a de novo review of the question at a later date. See Blevins v. Bardwell, 784 So.2d 166, 170-71 (¶ 14) (Miss.2001).

¶ 15. A chancellor is not required to wait for proof that a custodial parent’s actions have adversely affected a child. Ruth v. Burchfield, 28 So.3d 600, 606-07 (¶ 20) (Miss.Ct.App.2009). “[WJhere a child living in a custodial environment clearly adverse to the child’s best interest[ ] somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.” Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996). In Ruth, this Court affirmed a chancellor’s decision to deny a noncustodial parent’s motion to modify child custody because the custodial parent had “removed the conditions that could have arguably had an adverse effect on [the child] had they been allowed to continue.” Ruth, 28 So.3d at 607 (¶ 20). But in this case, Jason reintroduced the condition that arguably had an adverse effect on Tyler. During the December 2010 hearing, Jason testified that he and Mandy were getting a divorce. Jason and Mandy were divorced during the May 2011 hearing. But as of the July 2011 hearing, Jason and Mandy had resumed cohabitation. During that hearing, Jason and Mandy both testified that they intended to remarry.

¶ 16. The chancellor heard testimony that Jason and Mandy had an unstable relationship. Jason’s father, Jimmy, testified that Mandy had been cheating on Jason. Jimmy also testified that it was not suitable for Tyler to live in Jason’s home at the same time that Mandy lived there. As of the December 2010 hearing, Mandy was pregnant. According to Mandy’s former mother-in-law, Kathy Spann, Mandy told her that Jason was not the father of Mandy’s child. Tyler testified that Jason and Mandy had split up and gotten back together two or three times.

¶ 17. Jimmy told the guardian ad litem that after Jason and Mandy divorced, Jimmy “had to go console Jason because Jason was drunk and [he] threatened to kill himself.” There was testimony that Mandy believed the father of her child was a man who was in prison as of the time of the hearings. Mandy later claimed that Jason was the father of her child, and she had only befriended the man who was allegedly the father of her child. There was also testimony that Jason and Mandy allowed one of Mandy’s female friends to live with them and Tyler for an extended period. Tyler was aware that Mandy’s female friend had sex with two minors in Jason and Tyler’s home. Additionally, there was testimony that Tyler hid in a closet during a physical altercation between Jason and Mandy. During that altercation, Tyler heard Mandy tell Jason that she “didn’t care about his son.” During a different physical altercation, Mandy bit Jason’s nose. Based on the totality of the circumstances, it was within the chancellor’s discretion, to find that there had been a material change in circumstances adverse to Tyler’s best interests.

II. PERFORMANCE OF THE GUARDIAN AD LITEM

¶ 18. Jason has a litany of complaints regarding the way the guardian ad litem conducted her investigation. According to Jason, the guardian ad litem was derelict in her duties, and she “abandoned her obligation” to conduct a proper investigation. Jason claims the guardian ad litem improperly obtained information from third parties, rather than going to more appropriate sources. For example, Jason complains that the guardian ad litem asked Jason’s father, Jimmy, whether Jason paid Mandy’s bills while Jason’s own bills went unpaid, but the guardian ad litem never asked Jason whether that was true. Additionally, Jason laments that the guardian ad litem accepted Jimmy and Tania’s word regarding the paternity of Mandy’s baby, but the guardian ad litem never asked Mandy whether her baby was fathered by someone other than Jason. Jason raises several other similar allegations.

¶ 19. The guardian ad litem was appointed in an investigatory capacity. She was not appointed to represent Tyler. Thus, the guardian ad litem was “obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation.” S.G. v. D.C., 13 So.3d 269, 282 (¶ 57) (Miss.2009). Prior to making a recommendation, the guardian ad litem must “provid[e] the court with all material information [that] weighs on the issue to be decided by the court, including information which does not support the recommendation.” Id.

¶ 20. The chancellor contacted the guardian ad litem on June 14, 2011. The guardian ad litem began her investigation soon afterwards. She interviewed fourteen people and “evaluated all documents filed in this matter and all [of the] correspondence [that was] given to her.” On July 19, 2011, the guardian ad litem filed her report. Based on the totality of the circumstances, the guardian ad litem recommended that the chancellor find that there had been a material change in circumstances adverse to Tyler’s best interests. The guardian ad litem then recommended that Tania have physical custody of Tyler during the school year, and that Jason have physical custody of Tyler during the summer.

¶ 21. Jason’s attorney vigorously cross-examined the guardian ad litem during the July 2011 hearing. At that time, the guardian ad litem had seventeen years’ experience as a guardian ad litem for the Itawamba County Youth Court. She had also worked for the Itawamba County Department of Human Sendees. The guardian ad litem explained that she asked Jason’s father, Jimmy, several questions without verifying Jimmy’s responses with Jason because she did not want to further harm Jimmy’s relationship with Jason. The chancellor heard the guardian ad li-tem’s explanations regarding the manner in which she conducted her investigation. Jason and Mandy also testified during the July 2011 hearing, as did Tyler. Consequently, the chancellor heard what Jason and Mandy would have said in response to the questions Jason’s attorney thought the guardian ad litem should have asked. Finally, the chancellor did not “rubber stamp” the guardian ad litem’s report. Although the chancellor reached the same conclusions as the guardian ad litem, the chancellor did so based on her own analysis. We find no merit to Jason’s claim that the guardian ad litem’s investigation somehow resulted in reversible error. It follows that we find no merit to this issue.

¶ 22. THE JUDGMENT OF THE ITAWAMBA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

      . There was testimony that the father of Mandy’s baby was possibly someone who was in prison for possession and manufacturing of crystal methamphetamine. Mandy later testified that she had only befriended that man after she separated from Jason. Mandy also testified that she somehow arranged for that man to be a trusty while he was in prison. No definitive paternity test was ever introduced into evidence. It remains unclear whether Jason is actually the father of Mandy's baby, although Jason testified that he intended to raise the baby as his own child.

      . Jason's work schedule required that he work twelve-hour shifts. He was required to work four days followed by four days off. Additionally, he alternated between the day shift and the night shift. Because Jason had to drive approximately an hour to get to work, a typical day shift required that he leave his home at 5:30 a.m. He would then return home sometime between 7:00 and 8:00 p.m. When he worked nights, he would leave at 5:30 p.m. and return home sometime between 7:00 and 8:00 a.m. During the December 2010 hearing, Jason testified that Tyler often spent the night with Jason’s father, Jimmy Lindsey, when Jason had to work nights. Tyler typically got up alone and stayed home alone after school when Jason worked the day shift.

      . The source of that disagreement appears to have been based partially on Jimmy's testimony during the December 2010 hearing and an argument between Jason and his stepmother. According to Tyler, Jimmy's wife had told Jason to leave Jimmy's property sometime after the December 2010 hearing.


text:
    Tina STANDIFER and Robert Mann, Appellants v. Jordan BOREN, a Minor by and through his Mother Melissa GRAHAM, Appellee.
    No. 2011-CA-01513-COA.
    Court of Appeals of Mississippi.
    April 9, 2013.
    Anders Ferrington, Jackson, attorney for appellants.
    Bo R. Brock, Tupelo, attorney for appel-lee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This case comes before this Court after the Itawamba County Circuit Court granted a motion to dismiss in favor of defendants Jordan Boren and his mother, Melissa Graham. The motion to dismiss was granted on September 8, 2011, on the ground that Boren, a minor at the time, was never personally served process after the suit was filed on February 19, 2010. Following the circuit court’s decision to grant the motion to dismiss, Tina Standifer and Robert Mann, plaintiffs in the suit, executed the current appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 18, 2007, Boren was driving his vehicle when he allegedly crossed the center line and his vehicle collided with the vehicle occupied by Standifer, the driver, and Mann, the passenger. The Plaintiffs filed suit on February 19, 2010, alleging injuries sustained as a result of the collision. Boren and Graham were named defendants in the suit. Graham was personally served with process on March 26, 2010; however, Boren was never served with process. The Defendants still filed their answer and affirmative defenses on April 21, 2010. Included in their affirmative defenses was insufficiency of process and insufficiency of service of process. Then, on May 7, 2010, the Plaintiffs filed their first set of interrogatories, a request for production of documents, and a request for admissions. The Defendants responded to these requests on May 11, 2010.

¶ 3. The Defendants filed a motion to dismiss on January 27, 2011, claiming, among several other defenses, that there was an insufficiency of process and an insufficiency of service of process because Boren, a minor, was not served with process. The Defendants further claimed that Mississippi Rule of Civil Procedure 4(h) gave the Plaintiffs one hundred twenty days from February 19, 2010, the date suit was filed, to properly serve Boren. Boren was never served, and the Plaintiffs could not show good cause for failing to serve him process. The Plaintiffs argued that the motion to dismiss should have been denied “due to the lack of timeliness of [the motion to dismiss’s] filing and the [Defendants’] active participation in the litigation.”

¶ 4. On July 25, 2011, the circuit court held a hearing on the Defendants’ motion to dismiss. At the hearing, the circuit court found that the Defendants had not waived their right to pursue an affirmative defense; therefore, the motion to dismiss was granted. The circuit court did not rule on whether the statute of limitations had run until September 8, 2011, when it issued its order granting the motion to dismiss without prejudice. Feeling aggrieved, the Plaintiffs executed the current appeal and raise the following two issues:

I. Whether the circuit [court] erred in ... granting ... summary judgment.
II. Whether the [Defendants] waived any right to a [Mississippi Rule of Civil Procedure] 12 defense by participation in litigation.

ANALYSIS

¶ 5. “When reviewing a trial court’s grant or denial of a motion to dismiss, this Court employs a de novo standard of review.” Lucas v. Baptist Mem’l Hosp.-N. Miss., Inc., 997 So.2d 226, 229 (¶ 5) (Miss.Ct.App.2008) (citing Blakeney v. Warren Cnty., 973 So.2d 1037, 1039 (¶ 11) (Miss.Ct. App.2008)). Additionally, due to the nature of the two issues raised, we will address them both at the same time.

¶ 6. The Plaintiffs’ primary assertion is that the Defendants have waived “[a]ny right to assert a defense of insufficiency of process ... based on the passage of time and participation in litigation.” They argue that the Defendants made no motions to delay any actions, participated in discovery, and had multiple communications with the Plaintiffs’ attorney prior to filing the motion to dismiss. Further, the motion to dismiss was filed nine months after the answer was filed. The Plaintiffs also submit that the current case is distinguishable from Lucas because the defense in Lucas “filed early motions for improper venue that were answered and briefed before the motion to dismiss was filed, in effect constructively tolling the filing of the motion to dismiss!,]” and the Defendants in the present case did not do this.

¶ 7. Contrary to the Plaintiffs contention, we find that Lucas is directly on point. Thomas Lucas filed a medical negligence complaint against Baptist Memorial Hospital-North Mississippi (Baptist) on December 31, 2002, and amended that complaint on April 29, 2003. Id. at 228 (¶ 2). Lucas also filed a motion for additional time to serve process, which the circuit court granted. Id. Lucas admitted that Baptist was never properly served during the original one-hundred-twenty-day period or the additional time the circuit court granted. Id. at 229 (¶ 6). Lucas ultimately served process on Baptist on November 7, 2003. Id. at 228 (¶ 8). An attorney for Baptist returned the acknowledgment of receipt of the summons and complaint on November 24, 2003. Id. Baptist filed its answer to the complaint on December 15, 2003, and asserted various defenses, which included: (1) improper venue; (2) Baptist had been improperly identified as “Baptist Memorial Hospital”; and (3) Baptist had not been served with process within 120 days of filing the complaint. Id. at 228-29 (¶ 3). After filing a motion to dismiss on January 20, 2004, for improper venue or, alternatively, a request for a transfer of venue, Baptist then filed another motion to dismiss on August 20, 2004, asserting insufficiency of process. Id. at 229 (¶ 4). The motion to dismiss due to insufficiency of process was granted. Id. On appeal, Lucas argued that Baptist had waived its right to assert insufficiency of process because that affirmative defense was not included in the January 20, 2004 motion to dismiss and because Baptist had actively participated in the litigation. Id. at 232-33 (¶¶ 16, 19). Baptist had: filed an acknowledgment of receipt of the summons and complaint; answered the complaint; filed a motion to dismiss; responded to a motion to strike an affirmative defense for failure to serve process due to acknowledgment of receipt of service; and issued subpoenas for medial records. Id. at 233 (¶ 19). This Court held that because Baptist’s December 15, 2003 answer included the affirmative defense of insufficiency of process, this was sufficient to avoid waiving the defense under Mississippi Rule of Civil Procedure 12(h)(1). Lucas, 997 So.2d at 232-33 (¶ 18). Further, there was only a nine-month delay between Baptist’s answer and its first motion to dismiss. Id. at 233 (¶ 20). In regard to Lucas’s claim that Baptist’s active participation in the litigation waived its ability to pursue its affirmative defenses, this Court found that Baptist’s participation was minimal, and “[n]one of these actions can be seen as a waiver of the affirmative defenses.” Id.

¶ 8. In the present case, we are presented with a similar factual situation. The Plaintiffs filed their complaint on February 19, 2010, and served Graham on March 26, 2010. Boren, a twenty-year-old minor as of March 26, 2010, was never served as required by Mississippi Rule of Civil Procedure 4(d)(2)(A). Rule 4(d)(2)(A) provides: “The summons and complaint shall be served together .... upon an unmarried infant by delivering a copy of the summons and complaint to any one of the following: the infant’s mother, ... and if the infant be [twelve ] years of age or older, by delivering a copy of the summons and complaint to both the infant and the appropriate person as designated above.” (Emphasis added). Boren was clearly a minor over twelve years old at the time of service; thus the Plaintiffs were required to serve him in addition to his mother. The Defendants filed their answer on April 21, 2010, and asserted multiple affirmative defenses, including insufficiency of process and insufficiency of service of process. On May 11, 2010, the Defendants also served responses to the Plaintiffs’ requests for admissions. The record also contains two letters, one from the Plaintiffs’ attorney to the Defendants’ attorney and the other from the Defendant’s attorney to the Plaintiffs attorney. This is the extent of participation in litigation that occurred in the present case, and, like the participation in Lucas, amounts to only minimal participation. Additionally, there was also only a nine month time period from when the Defendants filed their answer to when they filed their motion to dismiss. This time period is exactly the same as the time period in Lucas. Based on the precedent of this Court and the Mississippi Supreme Court, the Defendants did not substantially participate in litigation, nor did they wait too long before pursuing their motion to dismiss.

¶ 9. Finding that the Defendants did not waive their right to pursue the affirmative defenses of insufficiency of process and insufficiency of service of process, we affirm the circuit court’s decision to grant the Defendants’ motion to dismiss.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.'

      . For the sake of brevity, Jordan Boren and Melissa Graham will be referred to collectively as "Defendants.” Tina Standifer and Robert Mann will be referred to collectively as "Plaintiffs.”


author: FAIR, J.,

text:
    Melissa YARBROUGH, Individually and for her Minor Son, Devin Herron, Appellants v. HITI INVESTMENTS LLC d/b/a Days Inn Hotel, Appellee.
    No. 2011-CA-01751-COA.
    Court of Appeals of Mississippi.
    April 16, 2013.

      Benjamin H. Holland, attorney for appellants.
    Mark Edward Norton, Hattiesburg, Lindsay Green Watts, Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES, FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. Ten-year-old Devin Herron and his parents, Donald Herron and Melissa Yar-brough, of Jefferson Parish, Louisiana, (the “Guests”) sued for their “wrongful eviction” from the Days Inn Hotel in Picayune on September 2, 2005, and for damages for torts committed when Melissa Yarbrough was assaulted with a knife, battered, and defamed in the process of the eviction. From a judgment dismissing their claims for failure to obtain timely process, the Guests appeal. We affirm because the trial court correctly found no good cause for further extensions of time to serve process.

FACTS

¶ 2. The issues before us are purely procedural and jurisdictional. They center on the trial court’s determination of failure to comply with Mississippi Rule of Civil Procedure 4(h), the “120 day rule” for serving process.

¶ 3. The Guests filed a pro se “Petition for Damages” on September 1, 2006. They included as defendants Hiti Investments LLC d/b/a Days Inn Hotel and Union Insurance Company. The Guests directed that'the clerk “please hold service” of process, and none was issued by the clerk. On December 15, 2006, now represented by counsel, the Guests filed an amended complaint adding three members of Hiti Investments LLC (“the LLC”) as defendants, one of which was its registered agent.

¶ 4. Shortly after filing the amended complaint, the Guests mailed, certified, a copy of the petition and summons to two of the three individual, named defendants, who were alleged to be residents of Louisiana. The mailings were returned “unclaimed” and were ultimately filed in the court record. On February 5, 2007, the Guests filed a motion seeking 180 days’ additional time to obtain service on the LLC and Tien M. Nguyen, its registered agent, who had an address in Biloxi. The motion for time recites the registered agent’s address “no longer exists due to Hurricane Katrina.” No ruling on the motion appears of record.

¶ 5. On September 2, 2009, the Guests moved for entry of default and for a default judgment based on the now two-and-a-half-year-old mailings. Default was entered by the clerk on the same day, but no judgment was taken. Another year passed. On October 1, 2010, the Guests again moved for additional time to serve process. This time, the trial court responded, entering an order giving them an additional 120 days. ' Another motion for time was filed on February 4, 2011, and a similar order was entered on February 8, 2011, but only for 60 more days.

¶ 6. The Guests finally perfected service on the, LLC by way of the Mississippi Secretary of State. The Secretary of State then mailed copies of the summons and complaint to the registered agent’s listed address, the same address known to the Guests since filing their amended complaint. The mailing was delivered to the registered agent at a different address nearby, apparently on the initiative of the local postman. Process was effectively served on the LLC on March 23, 2011.

¶ 7. Following service, the LLC defendant appeared through counsel and moved to set aside the 2010 and 2011 orders allowing additional time for service of process and for dismissal of the case. After a hearing, the trial court entered a ten-page order of dismissal. The order set out a detailed chronology of events beginning with the formation of the LLC in 1999 and ending with the Secretary of State’s service described above. Citing Bloodgood v. Leatherwood, 25 So.3d 1047, 1050 (Miss. 2010), the circuit court found that service is not effective service under Mississippi Rule of Civil Procedure 4(c)(5) when a mailing is returned “unclaimed” and that the five-year-old entry of default based on unclaimed mailings to the individual defendants was not proper. The court further set aside the order granting the final 60-day extension of time to serve process on the LLC, finding that although there had been good cause for some extension of time due to Hurricane Katrina, there had been nothing to warrant the final extension. The trial court therefore dismissed the case under Rule 4(h) for failure to timely effect service of process on any of the defendants. The Guests appeal from that judgment.

DISCUSSION

¶ 8. The Guests enumerate four issues in their brief on appeal, but the argument is cursory, consisting of only two pages divided between the summary of the argument and the argument itself. After reviewing the Guests’ brief in its entirety, we think the actual issues presented are as follows:

1. Whether good cause existed for the Guests’ failure to serve process within the time allowed.
2. Whether the trial court erred in finding no valid service of process on the two LLC members from Louisiana whose process by mail was returned “unclaimed.”
3. Whether the trial court erred in dismissing the case for failure to serve process, if the statute of limitations for some of the Guests’ causes of action had not yet run.
4.Whether the trial court erred in finding that a one-year statute of limitations applies to the Guests’ claims.

We shall address each of these in turn.

1. Good Cause

¶ 9. Mississippi Rule of Civil Procedure 4(h) requires “that a plaintiff must serve a defendant with process within 120 days or show good cause why service was not made.” Webster v. Webster, 834 So.2d 26, 27 (¶ 4) (Miss.2002) (citation and emphasis omitted). The trial court’s October 7, 2010 order granting 120 additional days for process has not been challenged on appeal; the issue is whether the court erred in finding no good cause for a final, 60-day extension of time to serve process.

¶ 10. “A determination of good cause is a discretionary ruling by the trial court and is entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.” Id. at 28 (¶ 5).

¶ 11. About one year before this lawsuit was filed, the physical address of the LLC’s registered agent was destroyed by Hurricane Katrina. The agent never returned to that address, but the LLC failed to update the agent’s contact information on file with the Secretary of State. Since process on an LLC is ordinarily served on the registered agent, the Guests contend that they have good cause for their failure to serve process on the LLC defendant. Supporting this contention are the facts that the Guests filed their original complaint pro se and changed attorneys at least once through the course of the litigation. The trial court agreed that there was good cause for some delay in service of process, but it found nothing sufficient to grant the final extension, which was requested more than four years after the complaint was filed. Otherwise, the record reflects little effort by the Guests to serve process on the LLC. By February 2007 they had determined that the registered agent’s address no longer existed. Yet the Guests took no action until February 2011, four years later, when a process server returned to that location to find the same thing. So far as we can tell, the Guests did nothing else to attempt to serve the LLC during the entire four-year period.

¶ 12. The Mississippi Supreme Court has explained:

[Gjood cause is likely (but not always) to be found when the plaintiffs failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or in forma pauperis.

Holmes v. Coast Transit Auth., 815 So.2d 1183, 1186 (¶ 12) (Miss.2002) (quoting 4B Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure § 1137 (3d ed.2000)). “[A]t a minimum, a plaintiff attempting to establish good cause must show at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Id. at (¶ 11) (quotations omitted).

¶ 13. It is uncontested that the LLC failed to maintain an address for its registered agent. However, that did not prevent the LLC from being served. In 2007, section 79-29-111(2) of the Mississippi Code Annotated provided in relevant part: “If a limited liability company has no registered agent, or the agent cannot with reasonable diligence be served, service of legal process against the limited liability company shall be upon the Secretary of State in accordance with the Rules of Civil Procedure of this state.” At all relevant times this method of service was available to the Guests.

¶ 14. “[S]imple inadvertence!,] mistake of counsel!,] or ignorance of the rules” does not constitute good cause for failure to perfect service of process. Holmes, 815 So.2d at 1186 (¶ 11). We find no abuse of the trial court’s discretion. This issue is without merit.

2. Service of Process on the LLC Members

¶ 15. This issue concerns the two LLC members the Guests attempted to serve by mail, which was returned “unclaimed.” The Guests acknowledge that under Mississippi law, as articulated in Bloodgood v. Leatherwood, 25 So.3d 1047, 1050-51 (¶ 16) (Miss.2010), service by mail returned “unclaimed” is ineffective. The Guests contend, however, that it is unfair to apply that rule to their case because the attempts to serve process occurred in late 2006, well before Bloodgood was decided. We do not agree.

¶ 16. The issue in Bloodgood was the sufficiency of service by mail returned with the dual designation “Unclaimed/Refused.” Mississippi Rule of Civil Procedure 4(f) states in relevant part:

If service is made [by certified mail on a person outside the state], the return shall be made by the sender’s filing with the court the return receipt or the returned envelope marked “Refused.”

See also M.R.C.P. 4(c)(5). The supreme court pointed out that “unclaimed” and “refused” had always been distinct under Mississippi law, with refused being effective service and unclaimed not. See Bloodgood, 25 So.3d at 1051 (¶ 16). Thus, it is clear from the plain language of Rule 4(f) and the Bloodgood decision that our law has never considered “unclaimed” returns to be sufficient. The reason for this is obvious:

A return envelope marked “refused,” as required by Rule 4(c)(5), denotes that the Postal Service actually attempted delivery on the defendant, who refused to accept it. A returned envelope marked “unclaimed” simply means that the Postal Service was unsuccessful in delivering the mailing to the defendant, whether because delivery was attempted at the wrong address, the defendant simply was not home at the time the Postal Service attempted delivery, or some other reason.

Id. at 1050 (¶ 15). The supreme court had, on more than one occasion, presupposed that unclaimed returns are ineffective. See, e.g., Webster v. Webster, 834 So.2d 26, 27 (¶ 3) (Miss.2002); Young v. Huron Smith Oil Co., 564 So.2d 36, 37 (Miss. 1990). Moreover, as a rule, appellate decisions are applied retroactively unless specifically stated to be prospective. Cleveland v. Mann, 942 So.2d 108, 113 (¶ 11) (Miss.2006).

¶ 17. Bloodgood may have been the first Mississippi Supreme Court decision to expressly state that an unclaimed return is insufficient to effect service of process, but that holding was readily apparent from the plain language of the rule. It is not clear why the Guests believe they are entitled to relief based on the alleged unfairness of applying Bloodgood to this case, but we need not explore the issue further because we do not find any unfairness. This issue is without merit.

3. Dismissal

¶ 18. The Guests contend the case should not have been dismissed because the statute of limitations had not run on some of their claims that are founded in negligence. However, because the trial court dismissed the case without prejudice under Rule 4(h) for failure to timely serve process, the statute of limitations is not relevant. See Watters v. Stripling, 675 So.2d 1242, 1244 (Miss.1996). We find no error in the circuit court’s dismissal.

4. Statute of Limitations

¶ 19. The trial court, in its order, specifically held that the Guests’ claim for “wrongful eviction” was subject to the one-year statute of limitations provided by Mississippi Code Annotated section 15-1-35 (Rev.2012). The Guests contend some of their claims are rooted in contract or negligence and a three-year statute of limitations applies.

¶ 20. A decision on the statute of limitations was not necessary to the trial court’s judgment, as the statute of limitations is irrelevant in deciding whether to dismiss under Rule 4(h). See Watters, 675 So.2d 1242. Rule 4(h) dismissals must be without prejudice irrespective of whether the statute has run. See Parmley v. Pringle, 976 So.2d 422, 425 (¶ 10) (Miss.Ct.App.2008). We addressed a similar situation in Stringer v. American Bankers Insurance Co. of Florida, 822 So.2d 1011, 1014 (¶11) (Miss.Ct.App.2002). This Court held:

It is entirely possible that consideration of the futility of dismissing in a manner that would permit the refiling of the suit a substantial number of years after the limitation period would have expired led the circuit court to dismiss with prejudice. If, in fact, the trial court had ever acquired jurisdiction over [the defendant], such a ruling might be appropriate in the interest of judicial economy. Nevertheless, in this situation where jurisdiction over the defendant has never been obtained, it remained beyond the court’s authority to rule on an issue that reaches to the viability of the claim itself. An affirmative defense such as the statute of limitations can only be raised by a party properly before the court — a postee in which [the defendant] has not found itself since the inception of this proceeding nearly ten years ago.

¶ 21. Stringer is instructive on the point that the trial court should not have proceeded to address the viability of the underlying claim. We therefore vacate the trial court’s decision to the extent it decides the statute of limitations applicable to the Guests’ claim. The judgment is otherwise affirmed.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS AFFIRMED AS MODIFIED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND JAMES, JJ, CONCUR.

      . It is difficult to pin down the issues precisely because of the Guests’ brevity and failure to present a proper statement distinctly identifying the issues on appeal, as required by Mississippi Rule of Appellate Procedure 28(a)(3). The appellants’ statement of the issues is just a list of facts and actions by the lower court. For example, issue four reads: "Hiti has had no proper address for its registered agent since Hurricane Katrina.”

      . In 2011, section 79-29-111 was repealed and replaced with section 79-29-125, which provided for substantially the same form of service. As of January 1, 2013, section 79-29-125 has also been repealed and replaced with a similar but more involved process. See Miss.Code Ann. § 79-35-13 (West 2013).


author: IRVING, P.J.,

text:
    Shaina BULLER, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2011-CC-00898-COA.
    Court of Appeals of Mississippi.
    April 16, 2013.

      Jeremy D. Eisler, Biloxi, Jane E. Tucker, Jackson, attorneys for appellant;
    Albert B. White, Madison, Leanne F. Brady, attorneys for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises from a decision of the Harrison County Circuit Court, affirming the finding of the Board of Review (the Board) of the Mississippi Department of Employment Security (MDES) that Shaina Buller, a former employee of the Gulf Coast Community Action Agency (GCCAA), committed disqualifying misconduct pursuant to Mississippi Code Annotated section 71-5-513 (Supp.2012), and is therefore not entitled to unemployment compensation benefits. Feeling aggrieved, Buller appeals and argues that the circuit court erred in affirming the Board’s ruling.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Buller worked as an assistant teacher and a lead teacher for GCCAA for thirteen years. GCCAA has various Head Start centers along the Mississippi Gulf Coast and assigns and reassigns its teachers to different centers according to the centers’ needs. Before Buller began working for GCCAA, the company informed her that teachers were not given permanent positions in any of the centers and that she could be reassigned to another center at any time. Buller accepted these conditions.

¶ 4. On September 20, 2010, GCCAA informed Buller that she had been reassigned to one of GCCAA’s other centers due to a shortage of teachers at that center. GCCAA informed Buller that she was expected to report to the new center the following day. Buller did not report to the new center. Instead, she filed a grievance with the company, alleging that she had inadequate transportation to get to the new center and requesting that she remain at her current location.

¶ 5. While waiting for GCCAA’s decision regarding her hardship request, Buller refused to report to the new center. As a result, GCCAA suspended Buller and later terminated her employment. Buller applied for unemployment benefits. MDES denied Buller’s request for unemployment benefits, finding that Buller’s refusal to report to the new center amounted to disqualifying misconduct. Buller appealed. An administrative law judge (ALJ) held a telephonic hearing at which Buller; Deby Gill, GCCAA’s CAIO specialist; Gloria Taylor, a division manager for GCCAA; and Lena Depiver, GCCAA’s human resources manager, testified. The only evidence offered during the hearing was live witness testimony.

¶ 6. Gill testified that Buller voluntarily left her employment with GCCAA because she did not show up for work at her newly assigned center on September 21, 2010, nor did she attempt to show up for work on any day thereafter. Gill stated that she notified Buller’s center manager that Bul-ler had been reassigned to another center due to a teacher shortage at the other center. According to Gill, teachers are made aware that they may be required to work in another center in the area if needed. Gill spoke with Buller on September 22, 2010, to confirm to Buller that GCCAA had reassigned her to another center and that GCCAA expected her to report to the new center. Gill noted that Buller never informed her that she was not going to go to the new location. Taylor affirmed that Gill had reassigned Buller to another center and that Buller never reported to work after the reassignment.

¶ 7. Depiver reaffirmed that GCCAA informs its teachers that there are no permanent positions and that they may be reassigned when needed. Depiver stated that she spoke with Buller about the situation. Buller told her that she did not have adequate transportation or the money to drive back and forth to the new center. Depiver testified that she mapped a different route to the new center for Buller in an attempt to find a shorter driving distance. Additionally, Depiver told Buller that her job would be in jeopardy if she did not report to the new location. Depi-ver also testified that when an employee refuses an assignment, the employee is expected to arrange a counseling session with the employee’s supervisor to discuss the reasons for refusal. If the employee continues to refuse the assignment, the employee meets with the Head Start director.

¶ 8. Buller testified that she did not report to the new center because she does not have dependable transportation. She admitted that she was aware that she could be moved to one of GCCAA’s other centers. Buller knew that there were no guaranteed permanent positions at any of GCCAA’s centers. She began submitting hardship letters to her supervisor two years prior to her termination. Since submitting her first hardship letter, she had been reassigned to two other facilities. Buller noted that she did not tell her center manager that she would not accept the new assignment. She stated that she only wanted to talk to the center director first. Buller also admitted that she had agreed to work where she was needed when GCCAA hired her as a teacher, that she never drove the alternate route that Depi-ver had suggested, and that she knew that her job was in jeopardy because she was not reporting to work. Buller claimed that she never received a letter informing her of her final employment status.

¶ 9. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. An appellate court’s review of a decision of the MDES is limited. Booth v. Miss. Emp’t Sec. Comm’n, 588 So.2d 422, 424 (Miss.1991). The Mississippi Supreme Court has stated that an appellate court “has no authority to reverse the ... the decision of the Board of Review” if the decision is supported by substantial evidence. Alexander v. Miss. Dep’t of Emp’t Sec., 998 So.2d 419, 424 (¶ 15) (Miss.2008) (citations omitted). However, we will overturn an agency’s decision if it is arbitrary or capricious. Allen v. Miss. Emp’t Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994). If the Board’s findings of fact are supported by substantial evidence, those findings “shall be conclusive, and the jurisdiction of the [appellate] courtfs] shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev. 2011).

¶ 11. Buller argues that the ALJ’s decision was not based on substantial evidence and was arbitrary, capricious, and erroneous as a matter of law because the ALJ applied the wrong definition of misconduct. According to Buller, the ALJ should have applied the definition of misconduct found in section 308 of MDES’s Unemployment Insurance Regulations instead of the definition promulgated by our supreme court in Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982). We disagree.

¶ 12. An employee that is discharged for misconduct is not entitled to unemployment benefits. Miss.Code Ann. § 71-5-513(A)(1)(b) (Supp.2012). Our supreme court has defined misconduct as:

conduct evincing such 'willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, [come] within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inad-vertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion [are] not considered “misconduct” within the meaning of the statute.

Wheeler, 408 So.2d at 1383. After Wheeler, MDES adopted the Wheeler definition of misconduct and produced the following definition of misconduct in section 308 of its Unemployment Insurance Regulations:

A. For purposes of ... [s]ection 71-5-513, misconduct shall be defined as including but not limited to:
1.The failure to obey orders, rules or instructions, or failure to discharge the duties for which an individual was employed;
a. An individual found guilty of employee misconduct for the violation of an employer rule only under the following conditions:
i.the employee knew or should have known of the rule;
ii. the rule was lawful and reasonably related to the job environment and performance; and
iii. the rule is fairly and consistently enforced.
2. A substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employer;
3. Conduct which shows intentional disregard — or if not intentional disregard, utter indifference — of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of the employee; or
4. Carelessness or negligence of such degree or recurrence as to demonstrate wrongful intent.
However, mere inefficiency, unsatisfactory conduct, failure to perform as the result of inability or incapacity, a good faith error in judgment or discretion, or conduct mandated by a religious belief or the law is not misconduct. Conduct mandated by the law does not include court ordered conduct resulting from claimant’s illegal activity; this may be considered misconduct.

¶ 13. The ALJ did not reference section 308 in the order denying benefits to Buller. This failure, however, does not amount to an error requiring a reversal of the Board’s decision. The ALJ determined that “[Buller’s] disregard of the employer’s interest and standard of behavior [tha]t an employer has a right to expect constitute^] misconduct....” Both Wheeler and section 308 include in their definitions of misconduct conduct that demonstrates an intentional disregard of an employer’s interests as is found in deliberate violations of standards of behavior that the employer has a right to expect from the employee.

¶ 14. There is substantial evidence to support the finding that Buller intentionally disregarded GCGAA’s interest and the standard or behavior that it had a right to expect from her as a teacher. When she accepted a teaching position with GCCAA, Buller was aware that she could be moved to a different facility. She testified that she knew that there were no permanent positions at the centers. In fact, before this reassignment, GCCAA had reassigned her to at least two other facilities. She admitted that she knew that her failure to report to the new center would jeopardize her employment with GCCAA, and she admitted that she never attempted to report to the new location. Buller’s own testimony demonstrated that she constantly and intentionally disobeyed a directive from her supervisors and that she failed to perform her assigned duties.

¶ 15. Based on the above, we find that there is substantial evidence that Buller’s conduct of continuously and intentionally disobeying a directive from her supervisors amounted to misconduct. Therefore, she is not entitled to receive unemployment benefits. Accordingly, the circuit court did not err in affirming the Board’s denial of unemployment benefits. This issue is without merit.

¶ 16. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: MAXWELL, J., CARLTON, J., JAMES, J.,

text:
    James WILSON, Appellant v. Pearlean DAVIS, Appellee.
    No. 2012-CA-00196-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.

      Felecia Perkins, Jessica Nicole Ayers, Jackson, attorneys for appellant.
    John R. Reeves, John Justin King, Jackson, attorneys for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This appeal involves a child-custody dispute between the natural father and the maternal grandmother. The chancellor determined that it was in the best interest of the minor child for the grandmother to have custody. But the chancellor did not first find the natural-parent presumption had been rebutted.

¶ 2. The law presumes that it is in the best interest of the child for her natural parent to have custody. Because the chancellor never found this presumption had been rebutted, it was error to consider the father and grandmother on equal footing and a conduct a best-interest analysis. We reverse the custody award and remand for the chancellor to determine whether the natural-parent presumption has been overcome.

Background

¶ 3. This matter began as a paternity and custody dispute between Concetter Davis (Concetter) and James Wilson (Wilson). Both issues were resolved in 2008, when by agreed order Wilson was adjudged to be the natural father of Concet-ter’s minor daughter, Sha’Nyla, and Con-cetter was awarded custody, and Wilson visitation.

¶ 4. After Concetter died in July 2011, Concetter’s relatives would not return the young girl to Wilson. So Wilson filed a petition to “modify” custody based on Con-cetter’s death. Concetter’s mother, Pear-lean Davis (Davis), who had been keeping Sha’Nyla, moved to intervene. Davis requested she be appointed Sha’Nyla’s guardian or, alternatively, be awarded grandparent visitation. The chancellor permitted Davis’s intervention and temporarily ordered that Sha’Nyla remain in Davis’s custody until the final hearing.

¶ 5. At this hearing, the chancellor did not treat the issue as an initial custody dispute between the natural parent and grandparent. Instead, she handled the request as a general child-custody modification, based on the prior custody determination between the two natural parents. The chancellor found there had been a material change in circumstances — Concet-ter’s death. She then determined, using Albright, that it was in Sha’Nyla’s best interest for custody to “remain” with Davis, despite noting Wilson’s “genuine! ] fatherly love for [his] daughter” and commending Wilson for initiating custody proceedings.

¶ 6. Wilson timely appealed.

Discussion

¶ 7. In child-custody cases, this court will only reverse the chancellor’s judgment in two circumstances — (1) her factual findings are manifestly wrong or clearly erroneous, or (2) she applied an improper legal standard. Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003) (citations omitted). In this case, we face the latter circumstance. Specifically, the chancellor failed to apply the legal presumption that it was in Sha’Nyla’s best interest for her father to have custody.

¶ 8. The initial custody dispute was between the two natural parents, Concet-ter and Wilson. But the present custody battle is between the natural parent, Wilson, and Sha’Nyla’s grandmother, Davis. And in a child-custody determination between a natural parent and a third party, such as a grandparent, the law presumes that it is in the best interest of the child for the natural parent to have custody. Lucas v. Hendrix, 92 So.3d 699, 705-06 (¶ 17) (Miss.Ct.App.2012) (citing McKee v. Flynt, 630 So.2d 44, 47 (Miss.1993)). This is because “[grandparents have no legal right [to] custody of a grandchild, as against a natural parent.” Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008).

¶ 9. The natural-parent presumption is rebuttable — but only “by a clear showing that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” In re Smith, 97 So.3d 43, 46 (¶ 9) (Miss.2012) (citations omitted). Only after the presumption is rebutted is the grandparent on equal footing with the parent, permitting the chancellor to apply Albright to determine whether it is in the best interest of the child for the grandparent, versus the parent, to have custody. In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 431 (¶ 24) (Miss.2009) (citations omitted).

¶ 10. With respect to Judge James’s conclusions and recitation of “relevant facts,” it is clear from the bench opinion that the chancellor failed to apply the correct legal standard. Instead, she treated the particular custody battle as a modification, failing to recognize that Davis, Sha’Nyla’s grandmother, had no right to custody, as against Wilson, Sha’Nyla’s natural parent. In doing so, the chancellor impermissibly permitted Davis, who had to intervene as a third party, to stand in the shoes of the deceased Concetter for the purposes of determining if custody should be modified. But once Concetter died, the issue was no longer should the custody be modified between the two parents. Cf. Martin v. Coop, 693 So.2d 912, 915-16 (Miss.1997) (“Grandparents do not stand in lieu of or in the shoes of the deceased parent.”). Rather, the law presumed custody should go to Wilson, Sha’Nyla’s sole remaining parent. To hold otherwise, the chancellor would first have to find the natural-parent presumption had been rebutted by clear evidence of Wilson’s desertion or abandonment of Sha’Nyla, immoral conduct detrimental to Sha’Nyla, or other unfitness before the chancellor could decide whether it was in Sha’Nyla’s best interest that Davis, versus Wilson, be awarded custody. See Leverock, 23 So.3d at 431 (¶ 24). And here, the chancellor made no such finding.

¶ 11. Because we find the chancellor legally erred by awarding Davis custody, we reverse the custody award and remand for a determination of whether Davis can show by clear evidence that the natural-parent presumption is rebutted. If so, then the chancellor should apply Albright to determine if it is in Sha’Nyla’s best interest to remain with her grandmother. If not, the chancellor should consider Davis’s request for grandparent visitation under Mississippi Code Annotated section 93-16-3 (Supp.2012).

¶ 12. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.; JAMES, J., JOINS IN PART. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY FAIR, J.

CARLTON, J.,

specially concurring:

¶ 13. I concur with the opinion and judgment of the majority, and I respectfully submit this opinion to specially acknowledge the fundamental rights of parents to the care and custody of their children.

¶ 14. The United States Supreme Court’s precedent recognizes the constitutionally protected interests of parents in their relationships with their children when facing deprivation of these cherished rights by third parties. The Supreme Court jurisprudence establishes that the Due Process Clause of the Fourteenth Amendment of the United States Constitution protects the fundamental rights of parents to make decisions concerning the care and custody of their children and protects the parents from deprivation of these rights by third parties. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct.- 2054, 147 L.Ed.2d 49 (2000); MLB v. SLJ, 519 U.S. 102, 109, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996); see also Mabus v. Mabus, 847 So.2d 815, 819 (¶ 16) (Miss.2003) (explaining that due-process protections, as set forth in Troxel, do not apply to custody disputes between two parents).

¶ 15. I therefore specially concur with the majority in its determination that grandparents possess “no legal right to custody of a grandchild, as against a natural parent.” Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008); see also Troxel, 530 U.S. at 66, 120 S.Ct. 2054. We must be mindful of the constitutional protection of parental rights against deprivation by third parties. To rebut the natural-parent presumption, there must be clear evidence showing circumstances threatening the child’s welfare, such as unfitness, abandonment, or desertion necessitating such intervention. Miss. Code Ann. § 43-21-103 (Supp.2012).

IRVING, P.J., JOINS THIS OPINION. JAMES, J„ JOINS THIS OPINION IN PART.

JAMES, J.,

dissenting:

¶ 16. I agree with the statements of the law in the majority opinion and the specially concurring opinion. However, it appears from the record that the chancellor properly considered the legal presumption that it is in a child’s best interest for the natural parent to have custody. The chancellor stated in her bench opinion that “[i]t is only that behavior of a parent [that] clearly causes danger to the mental or emotional well being of a child[,] ...” and “the presumption is in favor of awarding custody [to] the natural [parent].... ” The record indicates that the chancellor considered the totality of the circumstances, and that the presumption of awarding the child to the natural parent had been overcome by clear and convincing evidence. The chancellor was reluctant to extensively criticize the father, and she commended him for showing love for his daughter.

¶ 17. There were several parties involved in the assessment of the minor child according to the guardian ad litem’s report: family-protection specialists with the Mississippi Department of Human Services (DHS); a grief-support counselor; and the pastor of the church where the minor child attends services. Also, the pleadings in the chancery court were styled James Wilson v. Pearlean Davis and Mississippi Department of Human Services, which means DHS was involved in some manner.

¶ 18. Relevant facts entered into evidence were:

(1) The minor child was three years of age when the natural father came into her life. This shows that the father abandoned the child during the early stages of her life, pursuant to Mississippi Code Annotated section 93 — 15—103(3)(b) (Rev.2004).
(2) The father came into the minor child’s life after paternity had been established. The child was eight years of age at the time of the trial. The minor child is presently nine years of age, and she will be ten later this year.
(3) The father was seventy years of age at the time of the trial, and his wife was thirty-seven. There are three stepchildren — one girl and two boys. The two boys, ages ten and fourteen at the time of the trial, had anger-management issues, and they were receiving behavior therapy.
(4) The father has been married three times, and he had only been married ten months to his present wife at the time of the trial.
(5) The father smokes, but he states that he only smokes outside because his two stepsons have bronchitis.
(6) The father has four adult children, but the record does not show that he raised any of the children, or that he has parenting skills.
(7) The father’s present wife and the minor child’s deceased mother were friends, and it caused problems in the past.
(8) In addition to counseling, the minor child has been writing poems to her mother after her death. However, the child is on the honor roll.
(9) The minor child calls her father by his first name and calls one of her mother’s friends “dad.”

¶ 19. It is clear from the record that the minor child was in need of a protective order of custody. The child was bonded with her maternal grandmother, and since her mother’s death, has been living in her mother’s home with her grandmother and sister. Relatives are favored over nonrela-tives when there are issues to be settled with the natural parent before the natural parent can receive custody. This prevents a child from being in DHS custody and being placed in a foster home.

¶ 20. Here, it is in the best interest of the minor child that the father yield to the best interests of the child and work out a plan to make sure that the child’s best interests are protected. This is suggested in the guardian ad litem’s report:

The child needs the relationship with her father, but she needs time to transition. The child needs time to build or strengthen the relationship with her father because she knows him as “James” and not as her dad. [I]t is the recommendation of this guardian ad litem that [the minor child] remain with her grandmother and [be] housed with her sister in order that they may be able to deal with the death of her mother, and ultimately ... go into counseling with the father in order that she may strengthen the relationship, and at such time as the court deems appropriate to make that transition for the minor child.

¶ 21. The chancellor left the door open for the natural father by adopting the guardian ad litem’s report by reference so that the father could develop a plan to gain custody of his child if at all possible.

FAIR, J., JOINS THIS OPINION.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

      . See Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

      . See also Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008); Lucas v. Hendrix, 92 So.3d 699, 705-06 (¶ 17) (Miss.Ct.App.2012).

        .See also Miss Code Ann. § 43-21-103 (Supp.2012) (providing that Mississippi public policy holds parents responsible for their children's care, custody, support, and education, and providing that the State may act to remove a child when necessary for the child's welfare).

      . The father filed a petition for modification of custody instead of a petition for custody, and on appeal he complains about the procedure.

      . This was in the bench opinion, which satisfied one of the requirements to overcome the natural-parent presumption, namely that the parent's conduct be clearly detrimental to the child’s health. See Sellers v. Sellers, 638 So.2d 481, 486 (Miss.1994).