author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    Caleb CORROTHERS a/k/a Caleb Carrothers a/k/a Calbe Carother a/k/a Caleb L. Carrothers a/k/a Caleb Corothers a/k/a Calab Carothers v. STATE of Mississippi
    NO. 2014-DR-01689-SCT
    Supreme Court of Mississippi.
    February 2, 2017
    OFFICE OF CAPITAL POST-CONVICTION COUNSEL BY: LOUWLYNN VANZETTA, WILLIAMS, DELLWYN K. SMITH, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: BRAD ALAN SMITH, ATTORNEY FOR APPELLEE
    EN BANC.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. Caleb Corrothers was convicted of two counts of capital murder and one count of aggravated assault. For the two capital-murder convictions, he received the death penalty. Corrothers appealed, and this Court affirmed his conviction and death sentence. Corrothers now petitions this Court for permission to proceed in the trial court with a motion for post-conviction relief (PCR)-citing ten violations of his constitutional rights.

¶ 2. To be granted leave, Corrothers must present claims that are both procedurally alive and substantially show the denial of a state or federal right. For nine of Corrothers's ten claims, we find Corrothers failed to meet this standard. But for Corrothers's claim of juror bias through improper contact, we find further proceedings in the trial court are necessary. Thus, we grant him leave to proceed in the trial court on this issue only. We deny the rest of his petition.

Background Facts and Procedural History

I. Deadly Attack on Clark Family

¶ 3. Taylor Clark was known to sell marijuana occasionally. On the night of July 11, 2009, Taylor went to the home of his dealer's girlfriend, Karen Hickinbottom, to return the dealer's cell phone. While Taylor was there, a man showed up and asked to talk to Taylor. Taylor went outside with him. When Taylor came back inside, he said the man had wanted to buy drugs. The man came to Hickinbottom's door and asked to speak to Taylor again. Taylor and the man then left in Taylor's car.

¶ 4. At approximately 11:00 p.m., Taylor drove to his family's home, jumped out of the car, and ran into the house. Taylor's brother Joshua Clark saw an armed man emerge from the passenger side of Taylor's car and chase Taylor toward the house. Taylor was screaming to wake his parents, Frank and Tonya Clark. Frank ran to Taylor's aid. And they both held the door shut to keep the man out of the house. The man, however, shot through the door, striking and killing Frank. The man then entered the house and shot Tonya twice, but she survived. Taylor attempted to subdue the man. The man shot Taylor too, killing him.

¶ 5. The man threatened both Joshua and Tonya and demanded money and car keys. Tonya gave the man $50 and the keys to Taylor's car. The man left in Taylor's car, turning down a dead-end road. Tonya called 911. When police arrived, they found Taylor's car abandoned. Police searched the area but did not find the suspect.

II. Investigation and Arrest

¶ 6. Early the next morning, a walker came into contact with a shirtless man who appeared to be lost. The man claimed he had been attacked and asked for directions to the highway. Soon after, the shirtless man entered a gas station. The attendant noticed the man was covered in scratches. The man told the attendant he had been attacked by six people and needed to use the phone. The man made two phone calls but could not reach anyone. He then purchased several items and left.

¶ 7. The gas-station security camera captured the exchange. Using the security-camera footage, police identified the shirtless man as Caleb Corrothers. Police compiled a six-person photo lineup, which they showed Tonya and Joshua five days after the crime, during Taylor and Frank's visitation. Tonya could not identify the attacker. But Joshua identified Corrothers as the person who killed Taylor and Frank. A warrant was issued for Corrothers's arrest, and he turned himself in to the police.

¶ 8. Corrothers denied any involvement in the murders. But he did admit that he had bought marijuana from Taylor in May at a house near Tammy's Salon. The salon is located near Hickinbottom's house. Corrothers said that, on the night of July 11, he was attacked by a man named Suave and grazed by a bullet on his left thigh. Corrothers claimed a friend picked him up after the fight and took him home, where he went to sleep. Police were unable to verify Corrothers's story.

III. Capital-Murder Trial

¶ 9. Corrothers was indicted on two counts of capital murder and one count of aggravated assault. He was charged as a habitual offender. At trial, Joshua, Tonya, Hickinbottom, the early-morning walker, and Investigator Scott Mills testified. Joshua and Tonya identified Corrothers as the shooter. Hickinbottom identified Corrothers in court as the man who came to her house to see Taylor that night. The State also called Tiffany Hutchins, the girlfriend of Corrothers's friend Frederick Holmes. According to Hutchins, Corrothers said he had killed some people while he "was trying to get him a lick." Holmes also testified, recounting the story Corrothers had told him about the night. The story Corrothers told Holmes matched the testimony given by Hickinbottom, Tonya, and Joshua. After two hours of deliberation, the jury found Corrothers guilty on all three counts.

¶ 10. The sentencing portion of trial commenced the following day. Several mitigation witnesses testified on behalf of Corrothers-Corrothers's mother Vonda, his brother, aunt, middle-school teacher, and a family friend-who all testified to his poor upbringing, his being raised by his mother, and his lack of a father figure. The jury also heard from Dr. Joseph Angelillo, an expert clinical psychologist. The jury rejected Corrothers's mitigation argument and sentenced him to death. This Court affirmed his convictions and death sentence on direct appeal. Corrothers v. State , 148 So.3d 278 (Miss. 2014) ( Corrothers I ).

IV. PCR Petition

¶ 11. Corrothers now petitions this Court for leave to proceed in the trial court with a PCR motion. See Miss. Code Ann. § 99-39-7 (Rev. 2015); M.R.A.P. 22. He presents ten issues-

I. In violation of the Sixth and Fourteenth Amendments, trial counsel was ineffective for failing to perform an adequate pretrial investigation and present available mitigation evidence from petitioner's available family members and friends at sentencing, such that petitioner was denied a fair trial and sentencing free from any arbitrary factors as required by the Eighth Amendment.
II. Petitioner was denied due process and a fair trial when the State presented identification testimony from a witness who could only provide an in-court identification of Mr. Corrothers.
III. Mr. Corrothers is entitled to an evidentiary [hearing] based on recanted identification testimony.
IV. In violation of the Eighth and Fourteenth Amendments, petitioner's death sentence is unconstitutional because an execution will create a substantial risk of cruel and unusual punishment.
V. In violation of the Sixth and Fourteenth Amendments, trial counsel was ineffective for failing to perform an adequate pretrial investigation and present that petitioner has been institutionalized most of his adolescent life and adulthood, such that petitioner was denied a fair trial, and sentencing free from any arbitrary factors as required by the Eighth Amendment.
VI. Counsel failed to reasonably ensure that jurors gave full effect to mitigating evidence.
VII. In violation of the Sixth and Fourteenth Amendments, trial counsel was ineffective for failing to object to the prosecution's improper arguments during the capital sentencing closing arguments, such that petitioner was denied due process, a fair trial, and sentencing free from any arbitrary factors as required by the Eighth Amendment.
VIII. Petitioner's constitutional right to an impartial jury was violated when a juror had improper communication with the victims' family member and witness, Tonya Clark.
IX. In violation of the Sixth and Fourteenth Amendments of the United States Constitution, trial counsel's cumulative errors deprived petitioner of his constitutional right to effective assistance of counsel, a fundamentally fair trial, and due process of law.
X. Petitioner's sentence is disproportionate and in violation of the Eighth and Fourteenth Amendments to the United States Constitution and the corresponding portions of the Mississippi Constitution.

We address these issues categorically, based on the constitutional right Corrothers alleges was violated.

¶ 12. "Unless it appears from the face of the application, motion, exhibits and the prior record that the claims presented by those documents are not procedurally barred under Section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right," we "shall ... deny the application." Miss. Code Ann. § 99-39-27(5) (Rev. 2015).

Discussion

I. Right to Counsel (Issues I, V, VI, VII, and IX)

¶ 13. Half of Corrothers's claims are directed toward his trial counsel, who Corrothers argues provided him constitutionally ineffective assistance, thus denying his Sixth Amendment right to counsel. U.S. Const. amend VI.

¶ 14. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his attorney's actions were deficient and that the deficiency prejudiced the defense of the case. Id. at 687. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Stringer v. State , 454 So.2d 468, 477 (Miss. 1984) (citing Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ). The focus of the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id.

¶ 15. With that standard in mind, we find Corrothers has failed to make both showings for any of his six ineffective-assistance-of-counsel claims.

A. Failure to Investigate Mitigating Circumstances

¶ 16. Corrothers first asserts his trial counsel failed to effectively convey his home environment and family history during the sentencing phase of trial. He argues his counsel offered only a subset of his mitigating circumstances. And he claims defense counsel failed to investigate potential mitigation evidence, call additional witnesses, and prepare the witnesses who were called.

1. Family, Friends, and Teachers

¶ 17. To support his claim, Corrothers attaches affidavits from fourteen additional potential mitigation witnesses, as well as an affidavit from his mother Vonda, who had testified on his behalf during sentencing. But "[c]laims that additional witnesses should have been called are disfavored." Turner v. State , 953 So.2d 1063, 1074 (Miss. 2007). There "is no prejudice when the new mitigating evidence would barely have altered the sentencing profile presented to the decision maker." Chamberlin v. State , 55 So.3d 1046, 1054 (Miss. 2010) (internal quotations omitted) (quoting Sears v. Upton , 561 U.S. 945, 954, 130 S.Ct. 3259, 3266, 177 L.Ed.2d 1025 (2010) ). So to prevail on his claim, Corrothers must prove, "had the affiants been called to testify, there was a reasonable probability that the result of the proceeding would have been different." Moffett v. State , 156 So.3d 835, 849 (Miss. 2004) (citing Spicer v. State , 973 So.2d 184, 191 (Miss. 2007) ). And here, Corrothers fails in his burden.

¶ 18. Corrothers's poor home environment and family history were presented in detail at the sentencing phase. The jury heard from his mother, brother, church friend, aunt, and middle-school teacher, "who all testified to his poor upbringing, his being raised by his mother, and his lack of a father figure." Corrothers I , 148 So.3d at 292. The new affiants fall into these same categories, being either Corrothers's family members, church members, or school teachers. Many of the them present cumulative testimony. And none of their affidavit testimony covers any new subset of mitigating circumstances that was not thoroughly covered by the mitigation witnesses called to testify at trial. So Corrothers cannot show his counsel was deficient for failing to investigate these mitigating circumstances. Nor can he show prejudice, as the potential mitigating evidence "would barely have altered the sentencing profile presented to the [jury]." Chamberlin , 55 So.3d at 1054. And without showing prejudice, he has no triable ineffective-assistance claim.

2. Psychologists and Psychiatrists

¶ 19. Also as part of this claim, Corrothers argues his trial counsel was deficient for not having Corrothers tested further. Counsel did employ a psychologist, Dr. Joseph Angelillo, who tested Corrothers and testified at the sentencing hearing. But Corrothers asserts Dr. Angelillo's evaluation was too general-counsel also should have had Corrothers specifically evaluated for "executive functioning."

¶ 20. Executive functioning "is a person's ability to anticipate, problem-solve, and understand delayed gratification. The deficits inhibit one's ability to anticipate consequences, learn from mistakes, and respond in a rational and non-impulsive manner." Dickerson v. State , 175 So.3d 8, 16 (Miss. 2015). Corrothers presents the affidavit of Dr. Malcolm Spica, who conducted a neuropsychological examination of Corrothers in September 2015. Dr. Spica states Corrothers's results revealed a converging pattern of scores indicating severe difficulty with executive functioning and severe anxiety. To a reasonable degree of medical certainty, Dr. Spica states Corrothers's mental defect in executive control, particularly during times of pressure, was likely to produce significantly disorganized behavior and substantial lapses in judgment.

¶ 21. Based on this, Corrothers maintains defense counsel's failure to investigate and present evidence of his deficits in executive functioning constituted deficient performance. And this deficient performance prejudiced him, because there is a reasonable probability this evidence would have changed the outcome of the sentencing hearing. But "where defense counsel has sought and acquired a psychological evaluation for the defendant for mitigation purposes, counsel generally will not be held ineffective for failure to request additional testing." Ross v. State , 954 So.2d 968, 1005 (Miss. 2007) (citing Moore v. Parker , 425 F.3d 250, 254 (6th Cir. 2005) ). Moreover, as with Corrothers's lay witnesses, we find Dr. Spica's findings would not have altered the psychological profile presented to the jury. See Chamberlin , 55 So.3d at 1054.

¶ 22. At trial, "Dr. Angelillo described Corrothers as rebellious, cocky, a poor problem-solver, and testified that he might act out in anger 'when cornered.' " Corrothers I , 148 So.3d at 291-92. Dr. Angelillo discussed in detail Corrothers's paranoia and anxiety. He stated Corrothers was immature because he had poor coping skills and could not deal with conflict resolution and emotional issues. And the personality test Dr. Angelillo administered showed Corrothers had a hard time getting along with others and mistrusted others. Still, Dr. Angelillo opined Corrothers did not meet the criteria for incompetency or insanity, as he had an appreciation of wrong. And Dr. Spica's proposed expert testimony does not contradict this. While Dr. Spica found Corrothers has deficits in executive functioning, he did not state Corrothers is incapable of functioning properly.

¶ 23. Thus, we find the more specific executive-functioning testimony proposed by Corrothers's new expert would not have significantly differed or added to Dr. Angelillo's testimony. So Corrothers cannot show the outcome would have been different if an expert had been presented on executive functioning.

¶ 24. Similarly, Corrothers claims he should have been given a psychiatric exam, in addition to Dr. Angelillo's psychological evaluation. This exam, according to Corrothers's second new expert, would have explained the "psychological, psychiatric, biological, and environmental risks factors that formed his development." But the circumstances that led to Corrothers becoming the person he was were fully presented to the jury through Dr. Angelillo and the lay witnesses called. In particular, Dr. Angelillo opined Corrothers's family environment and school were environmental factors that adversely affected Corrothers's behavior. Dr. Angelillo said the lack of a male figure negatively affected Corrothers. He noted Vonda's depression due to financial issues, physical health problems, and two sexual assaults could have impacted Corrothers. He also noted Vonda had borderline personality disorder and lacked the ability to make her own choices. Further, he was unsure whether Corrothers suffered from an untreated learning or behavioral disorder because no intervention occurred while Corrothers was in school.

¶ 25. A review of the trial transcript reveals counsel reasonably investigated Corrothers's background-including his psychological history-and the impact it had on Corrothers's development and behavior. So Corrothers cannot substantially show his counsel was deficient in this area or that Corrothers was prejudiced by an additional expert not testifying. See Brown v. State , 798 So.2d 481, 498 (Miss. 2001) (denying relief based on failure to present additional psychiatric/psychological experts because the petitioner "ma[de] no showing that additional expert or psychiatric testimony would have resulted in a different sentence").

3. Effects of Prolonged Incarceration

¶ 26. In addition to his mitigation arguments, Corrothers insists his counsel was ineffective for not investigating and presenting evidence that he had been incarcerated-either in a juvenile training facility or adult prison-for half of his life. According to Corrothers, trial counsel should have presented to the jury evidence about the difficult conditions he would have faced as a young person in prison and how that would have impacted him.

¶ 27. But "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Foster v. State , 687 So.2d 1124, 1132 (Miss. 1996). And here, Corrothers has not shown counsel's decision not to focus on Corrothers's prolonged institutionalization and incarceration was anything other than strategic. Counsel would have been aware of this aspect of Corrothers's past through the investigations of the mitigation specialists. But dwelling on Corrothers's juvenile record and previous imprisonment could have backfired. "[W]hen the defendant puts mitigating evidence before the jury during the penalty phase, the prosecution is allowed a counter-attack." Finley v. State , 725 So.2d 226, 239 (Miss. 1998). By not focusing on Corrothers's living conditions while in juvenile or adult facilities, counsel kept the State from counter attacking with Corrothers's criminal history. See, e.g., Ross , 954 So.2d at 1005 (where defense counsel's "good prisoner" evidence opened door for State's evidence that defendant was, in fact, a high-security prisoner because he had been caught with a hacksaw, had tried to escape, and had been making alcoholic beverages in prison). So Corrothers can show neither his trial counsel was deficient for not presenting this mitigation argument nor that emphasizing Corrothers's experiences in a juvenile training facility or adult prison would have led to a different outcome.

B. Failure to Properly Instruct Jury

¶ 28. Next, Corrothers claims trial counsel "failed to reasonably ensure that jurors gave full effect to mitigating evidence." But the reason the jury was not instructed as Corrothers now believes they should have been was not due to any deficiency by his counsel. At trial, counsel presented four instructions on weighing mitigation evidence. The trial court rejected all four. And on direct appeal, this Court found no error in the judge's denial of these instructions. Instead, we found the mitigation-evidence instructions given to the jury were sufficient. Corrothers I , 148 So.3d at 300-04. So Corrothers has no claim his counsel was deficient or that he was prejudiced by the instructions given.

C. Failure to Object to Improper Argument

¶ 29. Corrothers also claims his trial counsel was ineffective for failing to object to the State's improper arguments during the penalty phase.

¶ 30. But we find neither of the arguments Corrothers cites was improper. So Corrothers cannot show counsel was deficient for not objecting, nor can he show prejudice. See Spicer v. State , 973 So.2d 184, 201 (Miss. 2007) ("Because the underlying issue has been found to be without merit, counsel cannot be held deficient for failing to object, nor can Spicer show prejudice.").

1. Comment on Corrothers's Lack of Remorse

¶ 31. During closing argument, the State said "[i]t can only be mitigating if there is some accepting of responsibility of your action. There has been none." Corrothers asserts this was an improper statement about mitigation evidence, so his counsel should have objected. But in Doss v. State , 709 So.2d 369, 399 (Miss. 1996), during closing argument at the penalty phase, the State argued also against considering Doss's mitigation evidence and for considering Doss's lack of remorse. And we held the prosecutor's comments did not exceed the limits of permissible argument. Id. at 400 (citing Berry v. State , 575 So.2d 1, 9 (Miss. 1990) ). See also Jackson v. State , 672 So.2d 468, 493 (Miss. 1996) (holding that the defendant's remorse is encompassed in a "catch-all," nonstatutory mitigating factor). We find the same here-the State's argument fell within the wide latitude allowed during closing argument. So Corrothers cannot show his counsel's failure to object was deficient or that the failure to object prejudiced him.

2. Comment on Evidence

¶ 32. This wide lattitude does have limits. "[C]ounsel is clearly limited to arguing facts introduced in evidence, deductions and conclusions he or she may reasonably draw therefrom, and the application of the law to the facts." Taylor v. State , 672 So.2d 1246, 1266 (Miss. 1996). And according to Corrothers, his counsel failed to object when the State exceeded that limit by misleading the jury to believe Corrothers's fingerprints were found in Taylor's car. But our review of the transcript reveals the State properly limited its argument to the evidence presented and a reasonable deduction to be drawn from it.

¶ 33. Corrothers's fingerprints were not found in Taylor's car. A handgun, the murder weapon, was recovered from the car. But it did not have Corrothers's fingerprints on it either. Before results of the fingerprint testing were received, Investigator Mills asked Corrothers whether his fingerprints would be found on the gun.

¶ 34. Both defense counsel and the State brought up this interview during their respective closings. Corrothers's counsel emphasized how Corrothers told Investigator Mills-

I didn't say I did it. Didn't say I killed him. Didn't say I wrecked the car even though investigator said well what if we find the finger prints on that gun. How did they get there. He said what? I don't know.

But the State argued the jury should view the interview differently-

[I]f you listen to the interview closely, [Mills] says, "If we have finger prints on the gun how could you explain that?" And it's very interesting because in his response to that [Corrothers] explains how his finger prints could be on that gun. He describes the murder weapon. He describes the murder weapon that was found in the car. Coincidence? ... [A]n hour into the interview, maybe more[,] he starts talking about how he was in a white car that night, trying to legitimately explain why his fingerprints would be in Taylor Clark's car because he didn't know.

Contrary to Corrothers's assertion, the State never said that Corrothers's fingerprints were found in the car or on the gun. Instead, both defense counsel and the State drew reasonable conclusions from the evidence the jury had heard about Corrothers's interview with Investigator Mills. So Corrothers cannot show his counsel's failure to object was deficient or that the failure to object prejudiced him.

D. Cumulative Effect

¶ 35. In his final ineffective-assistance-of-counsel claim, Corrothers asserts the "cumulative effect" of his counsel's errors entitles him to relief. But for there to be a "cumulative effect," there first must be individual errors by counsel. And, as discussed above, Corrothers has not substantially shown any instance where his trial counsel was in error. See Gray v. State , 887 So.2d 158, 173 (Miss. 2004) ("With no error to be found on the part of trial counsel in these enumerated instances, there can be no cumulative error[.]").

II. Right to an Impartial Jury (Claim VIII)

¶ 36. In addition to his Sixth Amendment right-to-counsel argument, Corrothers also asserts his Sixth Amendment right to trial by an impartial jury also was violated. U.S. Const. amend VI. He claims one of the jurors was biased. As proof, he attached two affidavits to his PCR petition-one by his mother Vonda, and another by his cousin Makyia Sanders. Both claim they observed a female juror improperly communicating with Tonya Clark during the trial.

¶ 37. The State asserts this claim is procedurally barred, because it was capable of being raised at trial and on direct appeal. See Williams , 669 So.2d at 52. But under our heightened standard of review for death-penalty cases, we resolve "all doubts ... in favor of the accused." Batiste v. State , 184 So.3d 290, 292 (Miss. 2016) (emphasis in original) (citations omitted). And here, we simply cannot speculate whether Vonda and Sanders would have alerted Corrothers or his counsel immediately if they indeed observed the alleged improper contact. Instead, we are required to resolve this question in Corrothers's favor to find no procedural bar.

¶ 38. Since his claim is at least "procedurally alive," we find his allegation of improper juror contact warrants an evidentiary hearing. Where allegations of juror impartiality have been made, the United States Supreme Court "has long held that the remedy ... is a hearing in which the defendant has the opportunity to prove actual bias." Smith v. Phillips , 455 U.S. 209, 216, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982) (citing Remmer v. United States , 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954) ). In light of Corrothers allegations, we find he is entitled to the opportunity to prove actual juror bias.

¶ 39. We grant Corrothers leave to proceed in the trial court with his PCR petition on this issue only.

III. Right to a Fair Trial (Issues II and III)

¶ 40. Corrothers argues his trial was unconstitutionally unfair based on Hickinbottom's testimony. On this issue, we deny him leave to proceed.

¶ 41. At trial, Hickinbottom identified Corrothers as the man who came to her door looking for Taylor on July 11, 2009. But in an affidavit executed six years later, she claimed she was "not totally sure what the man looked like because [she] could not see his face." Corrothers argues the affidavit shows Hickinbottom's in-court identification was unreliable and, thus, should not have been admitted. But Corrothers did not object to Hickinbottom's testimony as being unreliable, so this issue is waived. See Corrothers I , 148 So.3d at 300 (holding Corrothers's challenge on direct appeal to Tonya's in-court identification was waived due to Corrothers's failure to object). So the only procedurally available avenue to challenge Hickinbottom's testimony is through his related claim that Hickinbottom has recanted her trial testimony.

¶ 42. Corrothers asks for an evidentiary hearing to determine if Hickinbottom's recanted testimony mandates a new trial. But we find no hearing is warranted. Recanted testimony does not automatically entitle the defendant to a new trial. Williams v. State , 669 So.2d 44, 53 (Miss. 1996). Instead, "in a death penalty case, admission of perjured testimony mandates a new trial, where there is a reasonable probability that a different result will be reached in the new trial without the perjured testimony." Carr v. State , 873 So.2d 991, 998 (Miss. 2004) (emphasis in original) (quoting Williams , 669 So.2d at 53 ). Thus, even if Corrothers were able to prove Hickinbottom has recanted, he still could not show that "there is a reasonable probability that a different result will be reached" with her new testimony. Id.

¶ 43. Hickinbottom was not the only one who identified Corrothers. Both Tonya and Joshua also identified Corrothers as the murderer. And they testified they came into much closer contact with him that night than Hickinbottom. On direct appeal, this Court found both Joshua's and Tonya's identifications were reliable and admissible. Corrothers I , 148 So.3d at 298-300. So even without Hickinbottom's positive identification, the evidence still supports Corrothers being the man who lethally attacked the Clark family.

¶ 44. Moreover, Hickinbottom's new testimony is consistent with Corrothers's conviction. In her affidavit, Hickinbottom states she was "not totally sure" the man she saw was Corrothers. But she does not say the man she saw was not or could not have been Corrothers. While she "could not see his face," she "was able to see the man's figure and hair." And nowhere in her affidavit does she claim the man she saw had a different figure and hair than Corrothers.

¶ 45. Because Corrothers has failed to show a different outcome would have been reached had Hickinbottom testified according to her affidavit, we deny his request for leave to proceed with this claim in the trial court on his recanted-testimony claim.

IV. Right to Be Free From Cruel and Unusual Punishment (Issues IV and X )

¶ 46. Finally, we address Corrothers's two claims that the death sentence imposed on him violates his Eighth Amendment right to be free from cruel and unusual punishment. U.S. Const. amend VIII.

A. Proportionality

¶ 47. Corrothers argues his death sentence was disproportionate when compared to similar cases. But on direct appeal, we compared Corrothers's death sentence with others, as required by Mississippi Code Section 99-19-105 (Rev. 2015). Corrothers I , 148 So.3d at 324. Because we "have repeatedly upheld the death penalty [both] in cases involving capital murders committed during the commission of a robbery" and in "cases involving multiple capital murders," we found no disproportion. Id. (citations and internal quotations omitted).

¶ 48. As this Court has already considered the merits of this claim, Corrothers is procedurally barred from raising it again. See Miss. Code Ann. § 99-39-21(3) (Rev. 2015).

B. Method of Execution

¶ 49. Corrothers also argues the manner of execution set forth in Mississippi Code Section 99-15-51 (Supp. 2016) carries the unconstitutional risk of cruel and unusual punishment. Corrothers elaborates no further, except to acknowledge that, at the time he filed his PCR petition, Mississippi's three-part lethal-injection protocol was being challenged in both federal and state court. He raises this claim merely to "preserve" this issue, pending the outcome of that litigation.

¶ 50. But the United States Supreme Court has already addressed this issue sufficiently. The United States Supreme Court "has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment." Baze v. Rees , 553 U.S. 35, 48, 128 S.Ct. 1520, 1530, 170 L.Ed.2d 420 (2008). The death penalty is constitutional. Glossip v. Gross , --- U.S. ----, 135 S.Ct. 2726, 2732, 192 L.Ed.2d 761 (2015) (citing Baze , 553 U.S. at 47, 128 S.Ct. at 1529 ). So "it necessarily follows that there must be a constitutional means of carrying it out." Id. at 2732-33 (quoting Baze , 553 U.S. at 47, 128 S.Ct. at 1529 ). "And because some risk of pain is inherent in any method of execution, ... the Constitution does not require the avoidance of all risk of pain." Id. , 135 S.Ct. at 2733. "After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether." Id. So challenging the State's method of execution on Eighth Amendment grounds requires more than asserting Section 99-15-51's procedures carry the risk of severe pain. It also requires "identify[ing] a known and available alternative method of execution that entails a lesser risk of pain." Id. at 2731.

¶ 51. In his PCR petition, Corrothers fails to identify an alternative method of execution that is "feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain." Baze , 553 U.S. at 52, 128 S.Ct. at 1532. Thus, from the face of the petition, he has no Eighth Amendment method-of-execution claim.

Conclusion

¶ 52. In Corrothers I , we carefully considered Corrothers's arguments and found no reversible error. Once again, we have scrutinized the trial record and Corrothers's PCR petition and exhibits. And for the above reasons, we find Corrothers is not entitled to pursue nine of the ten claims in his PCR petition. For one claim only-alleged juror bias-we grant Corrothers leave to proceed in the Lafayette County Circuit Court. Corrothers shall have sixty days from the issue of this Court's mandate to file his PCR petition.

¶ 53. LEAVE TO SEEK POST-CONVICTION RELIEF GRANTED IN PART AND DENIED IN PART.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR.

      Corrothers v. State , 148 So.3d 278 (Miss. 2014) (Corrothers I ).

      Miss. Code Ann. § 99-39-27(5) (Rev. 2015).

      Miss. Code Ann. § 99-38-27(7)(b).

      Vonda testified she and her children lived with her mother and several other family members, a total of ten, for a period of time. At one point, she left the children with her mother to attend college. She explained Corrothers's father, Lee Green, was never in the picture and had substance-abuse issues. She discussed her bouts with depression surrounding her mother's death and a failed marriage with her Nigerian husband, Godwin Agulanna. Vonda elaborated regarding how her depression affected her ability to raise her children. Because of her lack of resources, Vonda and her children lived in a low-income neighborhood near drug dealers. According to Vonda, Corrothers did not have a consistent male figure in his life, which caused him to "act up" when he was eight to nine years old.

      Marcus, Corrothers's brother, testified next. Green was Marcus's father as well, and Marcus reiterated Green's lack of involvement in their lives. Marcus left home at the age of fourteen to chase his dreams, making money. Because he had cars, clothes, and money, Marcus stated his younger brother probably wanted to follow in his footsteps. Marcus agreed it was not the best thing for Corrothers to look up to him and his street life. While Marcus and Corrothers were not close growing up, they formed a relationship in prison when they were assigned to the same facility. Marcus expressed, in hindsight, he should have been a better example to Corrothers. He then asked the jury to spare his brother's life and sentence him to life in prison.

      Jessie Thompson, a fellow church member of Vonda's, met Corrothers when he was seven or eight years old. At one point, Vonda's family lived with Thompson. She recounted how Corrothers would steal items as a child. Thompson stated Vonda did not know how to discipline Corrothers and his brothers, and Thompson attempted to intervene. According to Thompson, Corrothers resented the church because he felt it was taking his mother away from him.

      Kathy Sanders, Corrothers's aunt, stated she was a figurehead in Corrothers's life until she became hooked on drugs. She agreed Corrothers grew up in a bad neighborhood plagued with drug addicts. She also reiterated how Green was not involved in Corrothers's life. Sanders discussed Vonda's poor marriage to Godwin and her relationship with her church. Kathy also thought Corrothers resented his mother for her devotion to the church over her children.

      Arlene Dowd, Corrothers's former teacher, testified regarding his performance in school. Dowd oversaw a special program for students with learning difficulties. Many of the students read below level. The program focused on reading and allowed the students to attend cultural events. Corrothers was in the program for one year. Dowd stated he was a "passionate and energetic" student who loved art. Although Corrothers had poor test scores, Dowd thought he had potential to be a great student. She noted Corrothers had behavioral issues at school, resulting in parent conferences and referrals to receive academic and behavioral help. The school went through the procedures to have Corrothers tested to determine if he needed medication, but testing never occurred. Dowd's talks with Vonda about Corrothers went nowhere as Vonda wished to "leav[e] it up to Jesus."

      The only exception is Corrothers's claim that his trial counsel should have investigated what happened to his half-brother Tim. In her PCR affidavit, Corrothers's mother Vonda avers Tim, when he was twenty-one, took a trip to Africa with his Nigerian father and returned a different person. Allegedly, Tim witnessed witchcraft while in Africa-a man was shot, died, and supposedly was brought back to life. She claims the event triggered Tim to have psychotic episodes he had never exhibited before. He later was diagnosed with schizophrenia, bipolar disorder, and other mental illnesses. But according to Vonda's affidavit, all these events occurred while Corrothers was serving his ten-year sentence. And Corrothers does not articulate how his half-brother's psychotic breakdown impacted him (Corrothers). So he cannot show he was prejudiced by his counsel not investigating what happened to his half-brother and not presenting this evidence at his sentencing hearing.

      See notes 3-7, supra .

      According to Vonda-
      During the trial, I noticed that a heavyset white female juror was communicating a lot of information to Tonya Clark when the jury would enter the courtroom. During the time the verdict was about to be read at sentencing, I noticed that this same juror said to Tonya Clark, "We got it."
      And according to Sanders-
      I attended the trial. I remember seeing a juror, who was a white lady, smile and wink her eye at Taylor's mother during the trial. I thought that it was unusual for the juror to be allowed to do that. I would be able to identify the juror if I saw her today.


source: Caselaw Access Project

author: WALLER, CHIEF JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Frank HARTLEY, Jr. v. John D. WATTS and Lenita S. Watts
    NO. 2015-CA-00217-SCT
    Supreme Court of Mississippi.
    March 2, 2017
    DOUGLAS LAMONT TYNES, JR., FOR APPELLANT
    W. BRADY KELLEMS, JOSEPH PRESTON DURR, CHELI KELLEMS DURR, FOR APPELLEES
    BEFORE WALLER, C.J., COLEMAN AND CHAMBERLIN, JJ.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. Frank Hartley Jr. appeals the final judgment of the Chancery Court of Lincoln County terminating his parental rights to his two biological children, A.B. and B.H. and granting an adoption to John D. and Lenita S. Watts. Finding that the judgment is supported by clear and convincing evidence, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Frank Hartley Jr. enlisted in the United States Air Force directly after graduating high school in 2003. In early 2004, after completing his training, he was stationed at Eglin Air Force Base located between Pensacola and Panama City, Florida. On August 21, 2004 he married Amanda Fullmer.

¶ 3. During late 2005, Hartley and Remy Bartenbach met and had an affair resulting in Bartenbach's pregnancy. Hartley and Bartenbach did not speak during much of the pregnancy. In February 2006, Hartley and Fullmer divorced as a result of Hartley's affair with Bartenbach. Bartenbach gave birth to A.B. on August 14, 2006. Bartenbach contacted Hartley shortly after the birth and asked him to come and meet his child. Hartley began visiting regularly Bartenbach at her home in Destin, Florida, following the birth. Beginning in January 2007, Hartley and Bartenbach moved in together, and he provided support for her and the young child. Also during this time, Bartenbach became pregnant with a second child by Hartley.

¶ 4. Earlier in 2006, Hartley had had a sexual encounter with a fourteen-year-old girl whom he met online and invited to his house. After the girl reported the incident to her parents, an investigation began that lasted until August 16, 2006, when Hartley was arrested. In January 2007, the State of Florida offered a plea deal in which Hartley would plead nolo contendere to a charge of lewd and lascivious battery with a person over twelve but under sixteen years of age and serve only two years in prison with four years' probation. Hartley accepted the deal and in April 2007, Hartley pleaded no contest and received a two-year prison sentence.

¶ 5. While he was incarcerated, Hartley was discharged from the Air Force under less than honorable circumstances. During this time, Bartenbach took A.B. to visit Hartley in prison a couple of times. Hartley claims that, before he was incarcerated, he left Bartenbach money in a checking account as support but could not recall the exact amount. Hartley also testified that Bartenbach and A.B. stayed in the apartment they had lived in together for about two months before he was incarcerated. On November 26, 2007, B.H. was born out of wedlock to Bartenbach. Following this event, visits to the prison were no longer feasible. In February 2008, Bartenbach and the two children moved to Ocean Springs, Mississippi.

¶ 6. Prior to being released from prison, Hartley was required to provide Florida probation authorities with proof of residence and employment and register as a sex-offender. Since Bartenbach had moved to Mississippi and had begun to sever ties to Hartley and his family, Hartley decided he would return to Pennsylvania, where he had family ties. On January 2, 2009, Hartley was released from prison and moved in with his grandfather in Pennsylvania. Hartley testified that he worked as an electrician with his uncle as soon as he arrived in Pennsylvania and eventually found full-time employment with Timberline Packaging around February 2009.

¶ 7. Following his release, Hartley maintained phone contact with his children as much as he could, given Bartenbach's animosity toward him. In August 2009, the minor children were taken into custody by Jackson County Department of Human Services. Hartley sought custody of his children but could not attend court in Jackson County as a result of his probation. In addition to hiring counsel to represent him in the youth court, he paid for a DNA test to prove paternity. Hartley also invoked the Interstate Compact on the Placement of Children (ICPC) which would allow his children to be placed with him out of the State of Mississippi. He also sought visitation rights. However, he was denied both. Bartenbach never sought custody of her children after they were removed and eventually signed a Surrender of Parental Rights form on January 17, 2013, and termination of her parental rights was ordered on June 2, 2014.

¶ 8. In December of 2009, A.B. and B.H. were placed with foster parents, Lenita and John Watts, in Lincoln County, Mississippi. The Wattses provided care for the children for twenty-two months from approximately December 2009 to October 2011. The Wattses received no support from Hartley or Bartenbach during this period and decided within the first six months of the placement that they would pursue adoption. Following their unexpected and unexplained removal from the Wattses' home, the children were placed in at least four other foster homes and, in at least one of these, allegations of sexual abuse were raised.

¶ 9. In January of 2010, Hartley was incarcerated for violating his probation on two counts, (1) curfew violation and (2) unsupervised contact with minors. Following his arrest, he was extradited to Florida, where he pleaded guilty. In September that same year, he was released from prison and returned to Pennsylvania. Shortly thereafter, on September 13, 2010, the Jackson County Youth Court ordered the Department of Human Services to stop working with the parents and to proceed with the termination of parental rights. At this hearing, Hartley again asked for visitation, custody, or ICPC rights, but all requests were denied.

¶ 10. The Department of Human Services filed a petition to terminate the parental rights of both Hartley and Bartenbach in May 2011. Despite the testimony of three social workers, the guardian ad litem, and Dr. Donald G. Hoppe, all recommending termination of parental rights, on June 20, 2011, the Jackson County Youth Court changed positions and ordered reunification efforts with Hartley.

¶ 11. In October 2011, the Jackson County Youth Court granted Hartley full custody of the children. However, the Lincoln County Chancery Court granted the Wattses' Temporary Injunctive Relief, staying any change in custody. Miss. Dep't of Human Servs. v. Watts , 116 So.3d 1056, 1057 (Miss. 2012).That same month, the Wattses filed their petition for termination of parental rights, adoption, or in the alternative custody, and for other relief in Lincoln County Chancery Court. Following the Mississippi Supreme Court's ruling on an interlocutory appeal, to determine whether the Lincoln County Chancery Court had jurisdiction, the case was remanded to the Lincoln County Chancery Court for a trial on the merits. Id.

¶ 12. Between 2011 and 2014, Hartley had intermittent contact with his children through phone calls and Skype. Hartley also spent a total of twenty-seven days and nine hours with his children through visits spanning from June 21, 2011, through March 15, 2014.

¶ 13. Trial began on April 29, 2014, and lasted four days. At trial, the Wattses called the following witnesses: Mark Holmes (Guardian Ad Litem), Hartley (Respondent), Lena Parker (DHS Supervisor), Lasonga Fields (DHS Resource Specialist), and Lenita Watts (Petitioner). Hartley called the following witnesses: Ellen Moore (therapist at Family Focus PLLC), Lakeshia Kinnard-Ellis (DHS Family Protection Specialist), Stephanie Stanton (DHS Adoption Specialist), Lindsay Teague (DHS Social Worker), Martha Hartley (Respondent's Mother), and Hartley (Respondent). Following the testimony of the other witnesses, the guardian ad litem, Mark Holmes, testified regarding his final report and recommendation that parental rights be terminated for both Hartley and Bartenbach. The Interlocutory Decree was entered on June 19, 2014, in favor of the Wattses' position, terminating Hartley's parental rights and allowing A.B. and B.H. to be adopted over the objection of a nonconsenting parent. Following a six-month interlocutory period, the adoption became final on December 23, 2014.

¶ 14. After the denial of his request for reconsideration, Hartley timely filed this appeal on January 23, 2015, raising the following issues: first, whether the Chancery Court of Lincoln County erred in terminating the parental rights of Frank Hartley Jr.; and second, whether the Chancery Court of Lincoln County erred in failing to address the three prerequisites for termination of parental rights that must be met under Subsection (1) of Mississippi Code Section 93-15-103.

STANDARD OF REVIEW

¶ 15. In termination-of-parental-rights cases, the Mississippi Supreme Court examines "whether credible proof exists to support the chancellor's finding of fact by clear and convincing evidence." W.A.S v. A.L.G. , 949 So.2d 31, 34 (Miss. 2007) (citing K.D.F. & J.C.F. v. J.L.H. , 933 So.2d 971, 975 (Miss. 2006) ). Further, the chancellor's findings of fact "are viewed under manifest error/substantial credible evidence standard of review." Id. However, the Court will not substitute its judgment for the chancellor's. Id.

DISCUSSION

I. Whether the Lincoln County Chancery Court erred in terminating the parental rights of Frank Hartley Jr.

¶ 16. The Wattses sought termination of parental rights pursuant to Mississippi Code Section 93-17-7 (Rev. 2013), which allows the adoption of a child over the objection of a nonconsenting parent upon a finding by the chancellor of certain enumerated factors. The chancellor's decision to terminate parental rights was based on four findings: A. Moral unfitness; B. Failure to provide support; C. Past and present conduct; and D. Acts and omissions under Section 93-15-103.

A. Whether the chancery court erred in determining that the moral unfitness standard had been met by clear and convincing evidence.

¶ 17. Hartley argues that the Wattses failed to overcome the strong presumption in favor of a natural parent retaining parental rights. In Re Adoption of H.H.O.W. , 109 So.3d 1102 (Miss. Ct. App. 2013). The party seeking the adoption and termination of parental rights must prove by clear and convincing evidence that the objecting party is "mentally, or morally, or otherwise unfit to rear and train [his child]." Miss. Code Ann. § 93-17-7(1) (Rev. 2013); see also In Re Adoption of H.H.O.W. , 109 So.3d 1102 (Miss. Ct. App. 2013). Hartley disputes each of the factors on which the chancery court relied to support the termination of parental rights. The chancellor cited each of the following findings in determining that Hartley was morally unfit.

i. Sex-Offender Status

¶ 18. Hartley is a convicted sex-offender who is required to register for life. He was convicted under Florida law for lewd and lascivious battery against a fourteen-year-old girl. The chancellor found that this fact would affect adversely the children's social and extracurricular engagements. Hartley argues on appeal that his criminal conviction is inadequate alone to support the termination, citing In Interest of J.D. : "commission of a crime is, alone, insufficient to find him morally unfit to rear and train his child, especially where rehabilitation is evident." In Interest of J.D. , 512 So.2d 684, 686 (Miss. 1987) (affirming the trial court's finding that the parent was fit). In the present case, the chancellor found that the criminal conviction, along with other factors delineated below, did render Hartley unfit and, absent manifest error, we will not disturb that determination.

¶ 19. Hartley also states that the chancellor incorrectly relied on a criminal conviction that happened in the past. However, the version of Mississippi Code Section 93-17-7(2)(d) that was in effect at the time the Wattses' petition was filed permitted the chancellor to consider "(d) viewed in its entirety, the parent's past or present conduct, including his criminal convictions," when granting an adoption over a parent's objection.

ii. Adulterous Relationships and Fathering Children Out-of-Wedlock

¶ 20. It is undisputed that Hartley engaged in adulterous relationships with at least two different women and fathered both A.B. and B.H. out of wedlock. The first relationship with Bartenbach ended his own first marriage. The second adulterous relationship, with Kathryn Kistler, ended her marriage. Hartley argues on appeal that his adulterous relationships alone do not support the termination. Hartley cites Petit v. Holifield , where this Court found "the fact that a custodial parent has cohabitated with a person who later became that parent's spouse [is] insufficient to constitute a material change in circumstances requiring a change in custody." Petit v. Holifield , 443 So.2d 874, 878 (Miss. 1984). The Court then stated that this is true also in adoption cases. Id. The Court continued, "[t]he mere fact that a natural parent has had a prior adulterous relationship is insufficient to warrant a finding that the parent is unfit under our statutes whereby his parental rights may be severed." Id.

¶ 21. In this case, Hartley began his relationship with Bartenbach before he was divorced from his first wife. He also began his relationship with Kistler, his current wife, while she was still married, ending that marriage. These events, together with the sexual battery, support the chancellor's decision.

iii. Candor Before the Courts

a. Youth Court

¶ 22. The chancellor found that Hartley had little regard for the truth when testifying before the Jackson County Youth Court, where it is alleged that he misrepresented the facts of the sexual battery of the fourteen-year-old. Hartley argues that he never misrepresented those facts to the youth court. However, Lenita Watts testified that Hartley, while under oath, testified to the Jackson County Youth Court that he had met the fourteen-year-old at a bar and that she had a fake ID and that it was the bouncer's fault for letting her in. Stephanie Stanton, an adoption specialist with DHS, testified that she also remembered Hartley making a similar explanation, but she did not remember him passing blame to the bouncer.

¶ 23. The record supports the chancellor's finding that Hartley misrepresented the facts of his sexual-battery conviction before the youth court.

b. Chancery Court

¶ 24. The chancellor found that Hartley had made misrepresentations to the chancery court regarding when he began cohabitating with his current wife. Hartley does not take issue with that but says that the activity did not affect his children, since they were not present. He also argues that cohabitation is relevant only where it adversely affects the children. Glissen v. Glissen , 910 So.2d 603, 611-12 (Miss. Ct. App. 2005) ; see also Cheek v. Ricker , 431 So.2d 1139, 1144 (Miss. 1983). The record supports the chancellor's finding of lack of honesty and candor by Hartley before the chancery court.

iv. Probation Violation

¶ 25. The chancellor found that violating probation was evidence of his moral unfitness. Hartley claims he was innocent of violating his probation, yet he pleaded guilty and was incarcerated. Hartley also argues that the chancellor should not apply Mississippi Code Section 93-17-7 to the fact that he pleaded guilty to his probation violation. However, the statute gives the chancellor broad discretion in subsection (f) to determine what conduct may be considered for a finding of unfitness.

v. Current Wife's Loss of Custody

¶26. The chancellor found that Hartley had maintained a relationship with a married woman, Kathryn Kistler, and caused her to lose custody of her children due in part to his status as a sex-offender. He also found that the Pennsylvania court forbade any contact between Hartley and Kistler's children. Hartley presents a similar argument here as before and suggests that since A.B. and B.H. were not involved, they were not harmed. However, there is a distinction that should be noted. The relationship with the married woman in Pennsylvania resulted in Hartley's violation of probation and her losing custody of her three children. The chancellor cited this factor to demonstrate Hartley's moral unfitness, as the relationship had consequences that went beyond the promiscuity. Hartley contends that the relationship resulted in marriage and was out of the presence of his children and therefore was not adverse to them. However, the extramarital affair, resultant probation violation, and subsequent incarceration demonstrate moral unfitness and support the chancellor's finding.

vi. Choice to Remain in Pennsylvania

¶ 27. Hartley chose to remain in Pennsylvania rather than move to Mississippi where his children were located, shirking all responsibility for their support. Hartley contends that staying in Pennsylvania was the best decision for him and his children. In addition to having family support there, he also had stable living conditions and employment. Hartley contends that nothing in the statutes or caselaw supports finding a parent unfit for living in a different state. This Court has stated that "a custodial parent may wish to take his or her child out of the state [and doing so] is [an] insufficient reason to deprive the parent of custody ...." White v. Thompson , 569 So.2d 1181, 1184 (Miss. 1990). Hartley is not the custodial parent in this case, but the caselaw supports his contention that nothing would preclude him from moving his children to Pennsylvania if he had custody and had no restrictions from the court that granted custody.

¶ 28. The chancellor correctly notes that Hartley's choice to move away from the children without seeking custody was adverse to the best interests of the children and constituted evidence against the father. Further, Department of Human Services recommended that Hartley move closer to facilitate reunification efforts.

B. Whether the chancery court erred in determining that Hartley failed to provide support by clear and convincing evidence.

¶ 29. The failure to provide support is another basis for termination under Mississippi Code Section 93-17-7. An adoption over the parent's objection may be ordered where "the parent has not consistently offered to provide reasonably necessary food, clothing, appropriate shelter and treatment for the child." Miss. Code Ann. § 93-17-7(2)(b) (Rev. 2013). The chancellor noted that the Department of Human Services never asked Hartley to contribute to the support of his children.

¶ 30. Hartley contends that his persistent requests for custody throughout this whole process support his willingness to provide for his children. He also points out that, prior to his incarceration and for a short time after, he provided all the necessary support for A.B. and that he did not abandon his children. The chancellor found, and the record supports, that Hartley consistently shirked any responsibility for providing support and never offered to provide support to his children.

C. Whether the chancery court erred in determining by clear and convincing evidence that Hartley's past and present conduct is grounds for terminating parental rights.

¶ 31. Hartley argues that the chancellor erred in finding that Mississippi Code Section 93-17-7 allows it to consider past conduct. However, the applicable version of the statute allows for such an analysis and states: "An adoption may be allowed over the objection of a parent where ... [v]iewed in its entirety, the parent's past or present conduct , including his criminal convictions, would pose a risk of substantial harm to the physical, mental or emotional health of the child." Miss. Code Ann. § 93-17-7(2)(d) (Rev. 2013) (emphasis added). Many of the factors set out in subsection A detail Hartley's conduct.

¶ 32. Hartley argues that the chancellor's assessment of his conduct gives no credit to the fact that he has been fighting for custody of his children for almost six years. He also contends that he has, through phone calls, Skype, and visits, developed relationships with A.B. and B.H. following the youth court's order of reunification efforts in 2011. While this is not relevant in determining the adverse effect Hartley's past and present conduct might have on the children, he seems to be arguing that his behavior has improved.

¶ 33. The chancellor found that the children were adversely affected and were deprived of their biological father as a result of Hartley's conduct. Additionally, the record supports the chancellor's finding that, as a result of his conduct, Hartley had little contact with his children from 2007 to 2011. The chancellor also found that it is unlikely that a handful of visits since 2011 could have created a father-child relationship after such a long absence. The chancellor also found that Hartley's past and present conduct would pose a risk of substantial harm to the physical, mental, and emotional health of the children. The chancellor considered the effect of Hartley's status as a sex-offender. He found that the social, extracurricular, and other activities of the children will be impaired by Hartley's status as a registered sex-offender and found that this was clear and convincing evidence of risk of substantial harm to the children.

D. Whether the chancery court erred in determining that Hartley's acts or omissions allowed termination of parental rights under Section 93-15-103.

¶ 34. Mississippi Code Section 93-17-7 permits the chancellor to base his decisions on acts or omissions under the termination-of-parental-rights statute, Mississippi Code Section 93-15-103 (Rev. 2013). Subsection (3)(f) of Section 93-15-103 provides for terminating parental rights where there is sustained separation and lack of communication that undermines the relationship between the parent and child, stating:

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)(f) (Rev. 2013) (emphasis added). The Court has noted that "[a] finding of substantial erosion of the parent/child relationship necessarily involves a consideration of the relationship as it existed when the termination proceedings were initiated." G.Q.A. v. Harrison County Dep't of Human Res. , 771 So.2d 331, 338 (Miss. 2000). The chancellor noted that no relationship existed at the beginning of the proceedings in 2011 and that it had not been eroded through any animosity between parent and children.

¶ 35. This Court also has held that a "substantial erosion could be prove[n] by showing a prolonged absence and lack of communication between the parent and child." Id. The statute, referenced above, states as much: "[B]y 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)(f). The chancellor found the following facts were clear and convincing evidence of an erosion of the relationship: Hartley's (1) failure to send any monetary support, (2) failure to take steps to notify authorities of suspected neglect of his children by Bartenbach, (3) failure to seek an adjudication of paternity and the rights and obligations associated with that determination, (4) failure to establish contact with the children during the time he was first released from prison, specifically from January 2, 2009, through January 27, 2010, (5) multiple incarcerations, (6) deliberate choices to locate a great distance from the children during the period of his probation, and (7) that at the time the petition was filed, the children simply did not know who he was.

¶ 36. The chancellor stated further, "[i]t is virtually incomprehensible to believe a father-child relationship, after the extended absence since [A.B.] was an infant and complete absence in the case of [B.H.], could be re-established with twenty-seven days and [nine] hours of physical contact coupled with Skype and phone contact."

¶ 37. Hartley argues that he was not allowed to communicate with his children until June 20, 2011. But after he was allowed to communicate, he did so consistently. He argues that where a parent has made efforts to maintain a relationship, termination of parental rights is error. De La Oliva v. Lowndes County Dep't of Pub. Welfare , 423 So.2d 1328, 1331-32 (Miss. 1982). He also cites this case to also show that error exists where DHS fails to work with the parents and a third party intervenes. Id. Hartley claims that the record clearly supports the notion that the Wattses interfered in his attempts to gain custody of his children. However, the record shows that, because the youth court had not ordered reunification efforts with Hartley, DHS had refused to work with him. Nothing suggests that the Wattses caused the problems. And after the youth court ordered reunification efforts with Hartley in 2011, DHS began working with him.

¶ 38. Another subsection of Mississippi Code Section 93-15-103(3)(g) allows for termination of parental rights where the parent has violated certain statutes. That subsection provides the following ground, justifying termination of parental rights:

When a parent has been convicted of any of the following offenses against any child: (i) rape of a child under the provisions of Section 97-3-65, (ii) sexual battery of a child under the provisions of Section 97-3-95(c), (iii) touching a child for lustful purposes under the provisions of Section 97-5-23, (iv) exploitation of a child under the provisions of Section 97-5-31, (v) felonious abuse or battery of a child under the provisions of Section 97-5-39(2) ....

Miss. Code Ann. § 93-15-103(3)(g) (Rev. 2013). The chancellor readily acknowledged that Hartley was not convicted of a violation of a Mississippi statute since the crime occurred in Florida. However, Hartley's Florida crime has the same elements as the Mississippi crimes "touching a child" and "statutory rape." Miss. Code Ann. §§ 97-5-23 (Supp. 2016) & 97-3-65 (Rev. 2014). The chancellor found that this factor was proved with clear and convincing evidence.

¶ 39. However, Hartley contends that, since the crime was committed in Florida, he is exempt from that consequence. Hartley argues that if the Legislature had intended to allow out-of-state convictions to apply, it should have made that clear in the statute. Hartley is correct that the statute references violations of Mississippi statutes. See Miss. Code Ann. § 93-15-103(3)(g) (listing specific Mississippi Code sections rather than general crimes.) However, the chancellor's decision was made under Section 93-17-7, and Section 93-15-103(3)(g) was invoked only as an additional factor under Section 93-17-7(e). That the Florida criminal judgment would not support a termination under Mississippi Code Section 93-15-103(3)(g) does not cause the ultimate holding to fail.

II. Whether the Lincoln County Chancery Court erred in failing to address the three prerequisites that must be met under Subsection (1) of Mississippi Code Section 93-15-103.

¶ 40. Hartley argues that the chancellor failed to consider all the prerequisites under Mississippi Code Section 93-15-103(1) before terminating parental rights, as required by Chism v. Bright , 152 So.3d 318 (Miss. 2014). Chism requires the trial court to address three factors under Section 93-15-103(1), including: (1) The child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child; (2) relatives are not appropriate or are unavailable; and (3) adoption is in the best interest of the child. Id. (citing In Re Dissolution of Marriage of Leverock and Hamby , 23 So.3d 424, 428 (Miss. 2009) ).

¶ 41. As to the first prong, it is undisputed that Hartley sought custody after the reunification efforts were ordered by the court. Reunification efforts began with Hartley after the children were in DHS's custody for two years. Hartley contends that he made countless efforts to get custody of his children. The Wattses respond that these prerequisites were not ignored at trial and that when the children were taken into DHS's custody, neither parent was available, as Bartenbach was neglecting the children and Hartley was in prison. The record supports their contention that Bartenbach was unavailable. However, the record shows that Hartley was released from prison in January 2009, about eight months before the children were taken into custody. The record supports his argument that he was not initially considered as an option after the children were taken into DHS's custody. The chancellor conceded that abandonment was not proven by clear and convincing evidence.

¶ 42. Hartley next argues under prong two that other relatives were not considered. The record also supports Hartley's contention that, initially, DHS made very few efforts to place the children with his family and that Hartley's parents sought to have the children placed with them. The Wattses responded that relative placement was not viable. Their argument was based on the fact that Hartley's mother did not take immediate action and asked for visitation only five months after the children were taken into custody and requested custody only after about a year.

¶ 43. Finally, with respect to prong three, Hartley contended that termination of parental rights should be the last resort. The Wattses argued that the chancellor found that adoption was in the best interests' of the children. They contend that this is supported by Guardian Ad Litem Mark Holmes's final recommendation. Indeed the chancellor found by clear and convincing evidence that the adoption was in best interests of the children.

¶ 44. Hartley's argument ultimately fails because the chancellor's termination was based on Mississippi Code Section 93-17-7. This Court has held that the chancellor may also consider factors from Section 93-15-103 in termination-of-parental-rights cases. Blakeney v. McRee , 188 So.3d 1154, 1163-64 (Miss. 2016). In Blakeney , this Court held that "[t]he statutory grounds for termination of parental rights in suits brought under Section 93-15-103 also are incorporated by reference as circumstances the chancellor may consider in determining whether to grant an adoption over the objection of a natural parent."

Id. at 1163. This Court continued, "the chancellor is free to consider, but was not required to find, the statutory grounds enumerated in Sections 93-17-7 and 93-15-103." Id. at 1164. Since the chancellor ruled under Mississippi Code Section 93-17-7 in terminating parental rights, the court was not required to consider all the prerequisites or factors under Section 93-15-103(1) and used that section only as additional support of his final judgment.

CONCLUSION

¶ 45. After a thorough consideration of the record and the chancellor's determination, we affirm the Lincoln County Chancery Court's judgment to terminate Frank A. Hartley Jr.'s parental rights and grant the adoption by John D. and Lenita S. Watts of A.B. and B.H.

¶ 46. AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      Because this case is confidential, the children will be referred to by their initials.

      Fla. Stat. Ann. § 800.04(4) (2014). See also State of Florida v. Frank A. Hartley , Case # 06-CF-2161 (Okaloosa County Circuit Court).

      The chancellor also noted that when Hartley was released from prison on January 2, 2009, he stated that he was required to register his sex-offender status in Pennsylvania within forty-eight hours. The record indicates that he did not do this until January 20, 2009.

      Mississippi Code Section 93-17-7 was amended in 2016. Because the proceedings occurred in 2014, this Court will view the version of the statute as it existed in 2014. Mississippi Code Section 93-17-7 (Re. 2013) states:
      (1) No infant shall be adopted to any person if either parent, after having been summoned, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, those matters set out in subsection (2) of this section, in either of which cases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children sought to be adopted. Provided, however, the parents shall not be summoned in the adoption proceedings nor have the right to object thereto if the parental rights of the parent or parents have been terminated by the procedure set forth in Sections 93-15-101 through 93-15-111, and such termination shall be res judicata on the question of parental abandonment or unfitness in the adoption proceedings.
      (2) An adoption may be allowed over the objection of a parent where:
      (a) The parent has abused the child. For purposes of this paragraph, abuse means the infliction of physical or mental injury which causes deterioration to the child, sexual abuse, exploitation or overworking of a child to such an extent that his health or moral or emotional well-being is endangered.
      (b) The parent has not consistently offered to provide reasonably necessary food, clothing, appropriate shelter and treatment for the child. For purposes of this paragraph, treatment means medical care or other health services provided in accordance with the tenets of a well-recognized religious method of healing with a reasonable, proven record of success.
      (c) The parent suffers from a medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.
      (d) Viewed in its entirety, the parent's past or present conduct, including his criminal convictions , would pose a risk of substantial harm to the physical, mental or emotional health of the child.
      (e) The parent has engaged in acts or omissions permitting termination of parental rights under Section 93-15-103.
      (f) The enumeration of conduct or omissions in this subsection (2) in no way limits the court's power to such enumerated conduct or omissions in determining a parent's abandonment or desertion of the child or unfitness under subsection (1) of this section. (Emphasis added.)

      Hartley also complains of what he refers to as other falsehoods, allegedly disseminated through DHS, such as he was convicted of child pornography. Lena Parker, a supervisor with Department of Human Services (DHS), testified that DHS likely was responsible for the dissemination of the falsehoods rather than Hartley. The record shows that this was introduced through a social worker's aid to one of the other social workers who counseled the children. The chancellor did not rely on these other alleged falsehoods in his decision.

      The chancellor also found the following regarding Hartley's testimony:
      Hartley represented to this court that the children were most distressed when he obtained them in October 2011, while the social worker testified they were happy. This Court chooses to find the social worker more credible. There are other incidents in this record that call Hartley's credibility in issue and when taken in view of the totality of circumstances cause this Court to find that the moral unfitness standard has been met. This is by clear and convincing evidence.

      Mississippi Code Statute 93-17-7(2)(f) states, "The enumeration of conduct or omissions in this subsection (2) in no way limits the court's power to such enumerated conduct or omissions in determining a parent's abandonment or desertion of the child or unfitness under subsection (1) of this section."

      The guardian ad litem stated that the youth court had authority to place the children with Hartley had he moved to Mississippi.

      The chancellor focused on the language of the statute which requires "offer[s] to provide," not actual providing.

      The youth court ordered monitored telephonic visitation, including the use of Skype, beginning in June 2011. Lenita Watts testified that she complied with the court's order but Hartley would occasionally miss these visits.

      A 2016 amendment of Section 93-15-103 removed the bulk of that section to Section 93-15-121.

      The chancellor is referring to the period of time following Hartley's incarceration in 2007 to 2011 when the children either were with their mother, Bartenbach, or in foster care and did not see their father. Hartley testified that he did make regular phone calls to his children after getting out of prison and during the reunification efforts beginning in 2011.