author: RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: WALLER, CHIEF JUSTICE, DISSENTING:

text:
    Jason Lee MILES a/k/a Jason Miles a/k/a Jason L. Miles v. STATE of Mississippi
    NO. 2017-KA-01089-SCT
    Supreme Court of Mississippi.
    July 26, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, JACKSON, MITCHELL DEE THOMAS, NEWTON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
    BEFORE RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Jason Lee Miles appeals the verdict of a Neshoba County jury, which found him guilty of grand larceny. Finding no error, we affirm his conviction and sentence.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. The December 2016 Neshoba County Grand Jury indicted Miles for grand larceny. Miles was arraigned on March 8, 2017, and was ordered in writing to appear for call on the first day of the July term, which was July 3, 2017. His trial was set for the second Monday of term, July 10, 2017. On June 28, 2017, the court issued an additional written Order Presetting Place One Criminal Case, setting forth a trial date of July 10, 2017. This order also was furnished to the three attorneys in the public defender's office, who represented Miles.

¶ 3. Miles's trial began on July 11, 2017. Miles's counsel did not move for a continuance until that same date. Counsel argued that he personally did not become aware of this trial date until the start of the July term, i.e., July 3. Counsel related that he did not receive discovery until July 3, and did not receive a DVD of Miles transporting the stolen property taken on January 5, 2016, until July 5. Counsel argued he personally had not had adequate time to prepare due to other trials. Counsel related that Miles had not provided him with a list of potential witnesses until the afternoon before trial. Counsel asked for additional time "to allow us to compel those witnesses and also to make-to at least view the four-wheeler that was recovered and is alleged to be the same as the one depicted in the video in the possession of my client."

¶ 4. The trial court reminded counsel that Miles was arraigned on March 8, 2017. At his arraignment, Miles was given a trial date of July 10, 2017. The court stated that it was its common practice to notify all three public defenders of trial dates. Counsel acknowledged that P. Shawn Harris, commonly referred to as the chief public defender, had assigned Miles's case to him. The trial court denied the motion for continuance, finding:

Mr. Thomas, the record is clear that Mr. Harris and the public defenders' office were on notice of this trial setting a day ago, on July the 10th, back on the 8th day of March. You have the full and complete subpoena power of the Court for any witnesses that you see fit to issue a subpoena for. I don't think I would be further dilatory in issuing them, though. If you are interested in issuing subpoenas returnable instanter, I extend that power of the Court to you.

The record reflects that five subpoenas subsequently were issued to the following people: Mr. Midly, David Holley, Paul Harrison, Jimmy Smith, and Mr. Thompson.

¶ 5. During the trial, it was gleaned that Donald Coleman was the present owner of a house and a one-acre tract of land in Neshoba County, located off Highway 16 East in Longdale. Seven years prior, Donald had a series of strokes, which eventually caused him to be placed in a nursing home in Meridian. Lavell, Donald's brother, testified that he regularly checked on Donald's land and property, in his absence, including a four-wheeler, lawn mower, and trailer, kept under a shed beside Donald's house. Although it was not marked as an exhibit, upon examination, Lavell verified the document giving him power of attorney over his brother.

¶ 6. On January 5, 2016, Lavell drove by Donald's house and saw the four-wheeler, lawn mower, and trailer chained and locked under the shed. The next evening, the equipment was gone. Lavell noticed tire tracks in the yard and immediately called the Neshoba County Sheriff's Office. At that time, Lavell's granddaughter, Brittney, was living in Donald's house while she attended college.

¶ 7. Lavell testified that the trailer was blue, six to eight feet long, with two wheels, and was approximately ten to fifteen years old. The sides of the trailer were wooden with a metal back that could be used as a ramp for loading and unloading. Lavell testified that the present value of the trailer was approximately $1,000 to $1,500.

¶ 8. Lavell testified that the four-wheeler was a dark green Arctic Cat, purchased new approximately fifteen to twenty years prior. At the time the four-wheeler was stolen, it was no longer running. Lavell estimated the present value was between $800 and $1,500.

¶ 9. Finally, Lavell testified that the lawn mower was a Hustler that Donald had bought three and a half years ago. Lavell had been with Donald when he purchased the lawn mower, and Lavell testified the purchase price was $2,800. Lavell testified that the lawn mower was in good operating condition, and he believed the lawn mower presently was worth $2,000 to $2,500.

¶ 10. During the trial, Lavell was shown a DVD and photographs taken by a Philadelphia police officer on the night of January 5, 2016. Lavell testified that the lawn mower and trailer shown in the video and depicted in the photographs were his brother's lawn mower and trailer.

¶ 11. Jeremy Pinson, then employed by the Jasper County Sheriff's Office, testified that on January 5, 2016, he was employed as a patrol officer with the Philadelphia Police Department, working the night shift. That night, he conducted a routine traffic stop on a Ford pickup truck pulling a trailer without lights or a tag. Pinson testified the DVD and photographs, previously shown to Lavell, fairly and accurately depicted the scene of the traffic stop when he pulled over the aforementioned pickup. Pinson further testified that the driver of the truck was Jason Miles, who was pictured in the photographs and video. After Pinson issued citations for driving with an expired tag and a suspended license, Miles was allowed to leave. Pinson also testified that two other men, also depicted in the photographs and video, were in the truck with Miles that night.

¶ 12. Daniel Day, an acquaintance of Miles's, testified that Miles asked Day to help him pick up a trailer on January 5, 2016. Day testified that he helped Miles hook up a trailer, with a lawn mower and four-wheeler in the trailer, "somewhere down Highway 16 towards the Kemper area." Day recalled being stopped by a police officer that same night. Day testified that the photographs previously shown to Lavell accurately showed the trailer he had helped Miles hook up.

¶ 13. Day admitted that he recently had pleaded guilty to possession with intent to sell methamphetamine. As part of his plea deal, he was required to testify in Miles's case. Day testified that his testimony had not changed since giving his initial statement to Investigator Sciple.

¶ 14. Investigator Sciple testified that he had investigated a case involving a stolen four-wheeler, trailer, and lawn mower, after being notified by Lavell Coleman of the theft at his brother's home. At the scene, Sciple found an open-air shed and "tracks in the yard where somebody had pulled off the road, went into the yard and almost got stuck in the yard where the trailer and everything was, and it was loaded up there and left."

¶ 15. During the investigation, Sciple learned of the traffic stop involving Miles, Day, and Jimmy Smith. The trailer and lawn mower from the traffic-stop video were identified as Donald's stolen equipment. After Sciple questioned Day, Day gave a written statement as to his involvement. Sciple spoke with Smith, but he denied being involved. Miles was released from jail before Sciple was able to question him. The lawn mower was returned, and Lavell confirmed it was the missing lawn mower. The trailer and four-wheeler were never found. The State rested, and Miles moved for a directed verdict, which was denied.

¶ 16. Tony Thompson, a longtime friend of Miles's, testified that he had seen Miles with a blue trailer prior to January 2016. However, he testified that he had never seen Miles with a Hustler lawn mower or an Arctic Cat four-wheeler.

¶ 17. At the conclusion of Thompson's testimony, counsel for Miles requested a sidebar discussion as to the status of the defense's witnesses. Although counsel had not yet spoken to Jimmy Smith or Paul Harrison, he made a proffer based on what Miles stated the witnesses' testimony would be if called. Counsel proffered that Harrison would testify that he purchased a blue utility trailer and lawn mower from Miles, and Smith would testify that neither he nor Miles stole the trailer or lawn mower.

¶ 18. Miles testified that, prior to January 2016, he personally owned a blue utility trailer, purchased from a now-deceased man for $350. He testified that he purchased the lawn mower from a lady who lived on an Indian reservation. He could not recall her name, where she lived, or when he bought the mower, but he paid $50 for it. Miles testified that he did not know anything about an Arctic Cat four-wheeler. Miles further testified that he sold the trailer for $200. Miles testified that the night he was stopped by the Philadelphia police, he was on his way to trade the trailer and lawn mower.

¶ 19. After Miles testified, the trial court excused the jury and informed counsel that Mr. Midly and David Holley were deceased. Miles's counsel reported that, after speaking to Paul Harrison, he would abandon Harrison as a witness. Counsel further stated that, "We have not been able to make contact with Mr. Smith; however, we have decided not to call Mr. Smith as a witness." The fifth person subpoenaed, Mr. Thompson, was served, appeared, and testified. Counsel stated the only other potential witness was the person who had sold the lawn mower to Miles, but he was unaware of her name. At that point, the defense rested.

¶ 20. The jury found Miles guilty of grand larceny of an aggregate amount not less than $1,000 but not more than $5,000. He was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC), with one year suspended.

¶ 21. Miles moved for a new trial, arguing the verdict was against the overwhelming weight of the evidence, inter alia. The trial court denied the motion, and Miles moved to appeal in forma pauperis.

STATEMENT OF THE ISSUES

¶ 22. On appeal, Miles sets forth the following issues:

I. Whether the State's evidence of market value was incompetent, and therefore, insufficient.
II. Whether the trial court erred in denying Miles's Motion for Continuance.

STANDARD OF REVIEW

¶ 23. The established standard of review for the admission or exclusion of evidence is whether the trial court abused its discretion. Wells v. State , 233 So.3d 279, 284 (Miss. 2017), reh'g denied (Jan. 25, 2018) (citing Evans v. State , 25 So.3d 1054, 1057 (Miss. 2010) ). This abuse-of-discretion standard also extends to review of a trial court's denial of motions for continuance. Mouton v. State , 227 So.3d 1079, 1083 (Miss. 2017), reh'g denied (Aug. 31, 2017).

I. Evidence of Market Value of Stolen Property

¶ 24. Miles claims the trial court erred in allowing Lavell to testify as to the market value of his brother's stolen property. Miles argues that, because Lavell is not the owner of the property, he is not competent to give a lay opinion as to the item's fair market value.

¶ 25. The State argues that Lavell is the attorney-in-fact for his brother. The State also argues that, even though Lavell is not the owner of the property, he has been handling his brother's affairs for more than seven years. Lavell personally locked the items under the shed, frequently checked on his brother's property, and had significant familiarity with the property.

¶ 26. In grand-larceny cases, the market value of the property at the time and place of the larceny is the most accurate measurement for satisfying that element of the crime. Totten v. State , 166 So.3d 32, 35 (Miss. 2015). This Court consistently has held that "evidence of the purchase price of stolen items is relevant circumstantial evidence from which the jury can reasonably infer the market value of the items at the time of the theft." Id.

¶ 27. In Gunn v. State , 56 So.3d 568 (Miss. 2011), this Court upheld a grand-larceny conviction in which the evidence submitted as to the value of stolen tools was that the victim had paid $1,236.90 for the tools six months before they were stolen. Gunn , 56 So.3d at 571. The Court held that the evidence presented was sufficient for a reasonable juror to find that the value of the stolen tools exceeded the statutory requirement. Id. In Totten , the Court found that evidence was presented to show that the purchase price of the stolen items, most of which were purchased immediately before the burglary, was at least $1,860. Totten , 166 So.3d at 35.

¶ 28. Similar to Gunn and Totten , Lavell presented sufficient evidence of the property's current value for a reasonable jury to infer that the cumulative value of the items was equal to or greater than $1,000 at the time of the theft. Lavell provided testimony that he had been with Donald when the Hustler lawn mower had been purchased. The purchase price three years prior to the burglary was $2,800. Lavell further testified that the lawn mower was in good operating condition, and he believed the lawn mower's present value was $2,000 to $2,500. This testimony as to the lawn mower alone is sufficient for a reasonable jury to infer the stolen property was valued between $1,000 and $5,000. Miles offered no evidence to rebut Lavell's testimony.

¶ 29. Furthermore, Rule 701 of the Mississippi Rules of Evidence governs the admissibility of opinion testimony by lay witnesses and allows lay witnesses to give such opinions so long as the inferences are "(a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or determination of a fact or issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." M.R.E. 701. The trial court did not err in allowing Lavell to testify as to his opinions of the present value of the property. Lavell's lay opinions were admissible because they were based on his personal knowledge of the stolen items.

II. Motion for Continuance

¶ 30. In order to preserve this issue for appeal, Miles was required to include the denial of the continuance in his motion for new trial. Morgan v. State , 741 So.2d 246, 255 (Miss. 1999) (citing Pool v. State , 483 So.2d 331, 336 (Miss. 1986) ). Miles's motion for new trial made no mention of the denial of a continuance. Because the issue was not properly preserved, and because the trial court did not have an opportunity to rule on this claimed error, this issue is not properly before this Court and is procedurally barred. Id.

¶ 31. Notwithstanding the procedural bar, this claim fails on the merits. Miles was allowed to subpoena five witnesses instanter. Two witnesses were deceased; two witnesses were abandoned; and one witness testified at the trial.

¶ 32. Trial judges have wide latitude in deciding whether to grant continuances, and that decision is left to the sound discretion of the trial judge. Lambert v. State , 654 So.2d 17, 22 (Miss. 1995). Denial of a continuance is not reversible unless manifest injustice appears to have resulted from the denial. Hatcher v. Fleeman , 617 So.2d 634, 639 (Miss.1993). The trial judge's refusal to grant a continuance was not an abuse of discretion, nor is there any indication that Miles suffered a manifest injustice resulting from the denial of a continuance. This issue is without merit.

CONCLUSION

¶ 33. The trial court did not abuse its discretion in allowing Lavell to testify as to the fair market value of the stolen items and/or in denying the motion for continuance filed the day of trial. Finding no error, we affirm Miles's conviction and sentence.

¶ 34. AFFIRMED.

COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., KING AND ISHEE, JJ.

WALLER, CHIEF JUSTICE, DISSENTING:

¶ 35. Because the evidence used to establish the value of the stolen property lacked a sufficient factual basis, I respectfully dissent.

¶ 36. Jason Lee Miles was convicted of grand larceny under Mississippi Code Section 97-17-41(1). The State carried the burden of proving, beyond a reasonable doubt, that Donald Coleman's stolen property was "of the value of One Thousand Dollars ($1,000.00) or more, but less than Five Thousand Dollars ($5,000.00)[.]"

Miss. Code Ann. § 97-17-41 (Rev. 2014). To prove the value of the three stolen items-the four-wheeler, lawn mower, and trailer-the State relied on the testimony of Lavell Coleman, Donald's brother.

¶ 37. According to Lavell, he was with Donald when he purchased the lawn mower three and one half years before the theft, and the purchase price of the mower was $2,800. "This Court has held that the proper measure of the value of property is the market value of the property at the time and place of the larceny, rather than the original purchase price." Gunn v. State , 56 So.3d 568, 571 (¶ 10) (Miss. 2011) ; see also Totten v. State , 166 So.3d 32, 35 (¶ 7) (Miss. 2015) ; Barry v. State , 406 So.2d 45, 47 (Miss. 1981) ; Thompson v. State , 910 So.2d 60, 63 (¶ 9) (Miss. Ct. App. 2005). It is true that "evidence of the purchase price of stolen items is relevant circumstantial evidence from which the jury can reasonably infer the market value of the items at the time of the theft." Totten , 166 So.3d at 35 (¶ 7). However, in those cases where we have affirmed the use of the purchase price as circumstantial evidence, the length of time was significantly closer between the purchase and the larceny. See, e.g., Totten , 166 So.3d at 35 (¶ 8) (The purchases were made "recently before the burglary[.]"); Gunn , 56 So.3d at 571 (¶ 11) (The items were purchased "six months before they were stolen."). Here, three and half years had elapsed between the time the lawn mower was purchased and when the larceny occurred. Taking depreciation into account, the timing is too attenuated to calculate the market value of the lawn mower at the "time and place of the larceny" by using only the purchase price.

¶ 38. But Lavell did not testify only to the purchase price of the lawn mower. He also gave a lay opinion as to what he thought all three of the items were worth at the time of the larceny: the lawn mower ($2,000 to $2,500); the fifteen-to-twenty-year-old, nonfunctioning four-wheeler ($800 to $1,500); and the trailer ($1,000 to $1,500). Miles's defense counsel timely objected to Lavell giving his opinion because he was not the owner of the items and had established no basis for knowing their market value. The trial court overruled Miles's objections because Lavell was "familiar with the property." While true, Lavell was not the owner of the items, and his familiarity with them does not mean he was "familiar with the market value." Williams v. State , 763 So.2d 186, 189 (¶ 10) (Miss. Ct. App. 2000). Lavell "could speculate, but that is insufficient." Id.

¶ 39. Since the State failed to prove the market value of the items at the time and place of the larceny, I would reverse the judgment of the Neshoba County Circuit Court and remand the case for further proceedings.

KITCHENS, P.J., KING AND ISHEE, JJ., JOIN THIS OPINION.

      Miles moved for a new trial on the following grounds: (1) the verdict was against the overwhelming weight of the evidence; (2) the court erred in refusing to grant a preemptory instruction and erred in refusing to direct a verdict at the conclusion of the State's case; (3) the court erred in refusing to grant each instruction submitted by Miles; (4) the court erred in sustaining every objection made by the State and overruling every objection made by Miles; and (5) the court erred in admitting evidence offered by the State, including testimony regarding valuation by persons not qualified to give such testimony.


source: Caselaw Access Project

author: COLEMAN, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Mary H. CURRY
    NO. 2018-JP-00194-SCT
    Supreme Court of Mississippi.
    July 26, 2018
    ATTORNEYS FOR APPELLANT: DARLENE D. BALLARD, RACHEL W. MICHEL, McCOMB, MEAGAN E. BRITTAIN
    ATTORNEY FOR APPELLEE: DERRICK T. SIMMONS, GREENVILLE
    EN BANC.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed a formal complaint against Justice Court Judge Mary Curry. The complaint outlined multiple allegations of misconduct on the part of Judge Curry, and ultimately, the Commission and Judge Curry entered into an agreed stipulation of facts, with a proposed recommendation of a public reprimand. The Commission and Judge Curry filed a joint motion for approval of the recommendation with the Court. We accept and affirm the Commission's recommendation of a public reprimand.

FACTS AND PROCEDURAL HISTORY

¶ 2. Judge Curry served as the justice court judge for the Eastern District of Claiborne County. In the instant case, Judge Curry agreed to the following findings of fact:

1. Judge Curry "has signed warrants based on affidavits sworn by her relatives ...." After signing the warrants, Judge Curry would not set bond even though the charges were misdemeanors. Judge Curry would recuse herself from the case, citing her relationship to the affiants.
2. Judge Curry "disposed of Protection from Domestic Abuse Petitions, in violation of the Mississippi Protection From Domestic Abuse Act ... [by] display[ing] a pattern of dismissing Petition for Order of Protection From Domestic Abuse without having the statutorily mandated hearing."
3. Judge Curry "presided over the Initial Appearance of ... a relative concerning his Possession of a Controlled Substance charge" setting the bond at $50,000. However, later, the relative filed "what purports to be a Motion for Bond Reduction. The Motion for Bond Reduction is blank and it does not state any reason for [the relative]'s bond to be reduced[,]" and only contains the relative's signature. Yet, Judge Curry granted the reduction and reduced bond to $5,000.
4. Judge Curry waived an expungement fee and "directed the clerks to void the receipts in [the] matter and to refund ... the money."
5. Judge Curry, "after being informed of th[e instant matter] and the identity of the complainant[,] submitted a letter to the Claiborne County Board of Supervisors, requesting that they transfer the complainant from her position as Justice Court Clerk." Judge Curry cited the filing of the complaint as a reason for removal.

Judge Curry stipulated that her conduct as outlined above, violated the following canons of the Code of Judicial Conduct: Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(5), 3B(7), 3B(8), and 3C(1). Additionally, Judge Curry stipulated that her conduct also violated Mississippi Code Section 93-21-11 (Rev. 2013) and Mississippi Code Section 25-7-25 (Rev. 2010). Lastly, Judge Curry agreed that her conduct violated Section 177A of the Mississippi Constitution as it is conduct prejudicial to the administration of justice, which brings the judicial office into disrepute.

¶ 3. The Commission and Judge Curry agreed to a proposed recommendation of a public reprimand. On March 12, 2018, the Commission filed a joint motion requesting the Court approve the Commission's findings of fact and recommendation.

ANALYSIS

¶ 4. According to Section 177A of the Mississippi Constitution:

On recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.

Also, Commission on Judicial Performance Rule 10(E) provides that the Court "shall prepare and publish a written opinion and judgment directing such disciplinary action, if any, as it finds just and proper. The Supreme Court may accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission." Ultimately, it is the Court making final decisions in judicial performance cases.

¶ 5. The Commission's findings of fact indicate that Judge Curry violated the following canons of the Code of Judicial Conduct.

Canon 1 provides:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2 provides, in pertinent part:

A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. Judges shall not allow their family, social, or other relationships to influence the judges' judicial conduct or judgment. Judges should not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges. Judges shall not testify voluntarily as character witnesses.

¶ 6. Canon 3B provides, in pertinent part:

(1) A judge shall hear and decide all assigned matters within the judge's jurisdiction except those in which disqualification is required.
(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
...
(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. A judge shall refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and shall require the same standard of conduct of others subject to the judge's direction and control.
...
(7) A judge shall accord to all who are legally interested in a proceeding, or their lawyers, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that: ....
(8) A judge shall dispose of all judicial matters promptly, efficiently and fairly.

¶ 7. Lastly, Canon 3C(1) provides:

A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and shall cooperate with other judges and court officials in the administration of court business.

¶ 8. The Court must first determine if Judge Curry's actions amount to "willful misconduct" or "conduct prejudicial to the administration of justice which brings the judicial office into disrepute." Miss. Const. art. 6, § 177A. The Court has held that willful misconduct in office is:

the improper or wrong use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith....
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice which brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.
This Court also has noted that a judge may "through negligence or ignorance not amounting to bad faith, behave in manner prejudicial to the administration of justice so as to bring the judicial office into disrepute." We have further explained that "misconduct does not have to be embedded in any form of bad behavior"-ignorance and incompetence can amount to conduct that violates Section 177A of the Mississippi Constitution.

Miss. Comm'n on Judicial Performance v. Harris , 131 So.3d 1137, 1142 (¶¶ 14-15) (Miss. 2013) (citations omitted). In its brief, the Commission explains that Judge Curry's involvement in her relatives' cases violated Canon 2A, 2B, 3B(1), and 3B(5), and her failure to adjudicate the domestic abuse cases properly by dismissing the matters without a hearing or order violated Canons 3B(2), 3B(7), and 3B(8) and Section 93-21-1. Judge Curry's actions relating to refunding the expungement fee violated Canons 2A, 3B(2), and 3B(8). Finally, Judge Curry's actions in seeking the removal of the complainant from her job violated Canons 2B and 3C(1). Judge Curry admitted that her actions violated the above canons. Further, Judge Curry admitted that her actions violated Section 93-21-11, which provides that "[w]ithin ten (10) days of the filing of a petition under the provisions of this chapter [ (Protection from Domestic Abuse) ], the court shall hold a hearing, at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence[,]" as well as Section 25-7-25, which involves justice court fees.

¶ 9. We conclude that Judge Curry's conduct violated the above canons and statutes and that the Commission's findings are supported by the evidence in the record, including Judge Curry's own admissions and other documents related to the conduct at issue. Judge Curry's conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice, which brings the judicial office into disrepute.

¶ 10. After determining that Judge Curry committed misconduct, the Court now determines the appropriate sanctions for her misconduct. "The sanctions in a judicial misconduct case should be proportionate to the judge's offense." Miss. Comm'n on Judicial Performance v. Vess , 227 So.3d 952, 956 (¶ 13) (Miss. 2017) (citing Miss. Comm'n on Judicial Performance v. Harris , 131 So.3d 1137, 1144 (¶ 23) (Miss. 2013) ). The Court follows a six-factor test in determining whether a recommended sanction is proportionate to the offenses. Id. The factors are as follows:

(1) the length and character of the judge's public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) whether the conduct was willful, intended to deprive the public of assets, or if it exploited the judge's position; and (6) the presence or absence of mitigating or aggravating factors.

Id. at 956-57 (¶ 13) (Miss. 2017) (quoting Miss. Comm'n on Judicial Performance v. Thompson , 169 So.3d 857, 869 (¶ 43) (Miss. 2015) ).

1. Public Service

¶ 11. Judge Curry had been a justice court judge for two years, but she had been in public service as an employee of Claiborne County for thirty-four years prior to taking the bench.

2. Prior Caselaw

¶ 12. Though there are no identical cases, the sanction of a public reprimand is consistent with other caselaw involving similar conduct. In Mississippi Commission on Judicial Performance v. Dearman , 66 So.3d 112, 118 (¶ 26) (Miss. 2011), the Court ordered a public reprimand for Judge Dearman, who was involved in the initial appearance of a family member. Judge Curry participated in three cases involving her relatives. In regard to Judge Curry's dismissal of the domestic abuse matters without a hearing as required by statute, in Mississippi Commission on Judicial Performance v. Roberts , 227 So.3d 938, 949, 950 (¶¶ 33,42) (Miss. 2017), the Court stated that "failure to follow statutory dictates" is sanctionable, and the Court ordered Judge Roberts to be publicly reprimanded. In In re Chambliss , 516 So.2d 506, 506-7 (Miss. 1987), the Court ordered that Judge Charlie Chambliss receive a public reprimand for seeking to have several police officers who were involved in a traffic stop of Judge Chambliss removed or reassigned. Similarly, Judge Curry, in her official capacity, attempted to have a complainant removed or transferred from her position. See also Miss. Comm'n on Judicial Performance v. Brown , 918 So.2d 1247 (Miss. 2005) (Judge interfered with son's prosecution and threatened complainant's job when a judicial complaint was filed against judge. The Court sanctioned the judge by removal from office and payment of costs.)

3. Magnitude of Offense

¶ 13. In Mississippi Commission on Judicial Performance v. Bustin , 71 So.3d 598, 604-05 (Miss. 2011), the Court explained:

[M]ost citizens' primary, and perhaps only, contact with the law is through justice court; for that reason, justice court judges must " 'regard scrupulously' " their office.
Miss. Comm'n on Judicial Performance v. Sanford , 941 So.2d 209, 215 (Miss. 2006) (quoting In re Bailey , 541 So.2d 1036, 1039 (Miss. 1989) ). If justice court judges do not exhibit professionalism, there is little chance that our citizenry will understand and respect the legal process. Sanford , 941 So.2d at 215 (quoting In re Bailey , 541 So.2d at 1039 ).

Judge Curry's conduct eroded the public's confidence in, and perception of, the judiciary by allowing herself to be involved in pending matters involving her relatives, calling into question the impartiality of the judiciary. Additionally, Judge Curry's improper handling, including ignoring statutory dictates, of three cases involving requests for orders of protection from domestic abuse is of great concern due to the sensitive nature of domestic abuse cases. Lastly, Judge Curry's attempt to have the complainant in the instant case removed from her position and transferred is significant. Certainly, Judge Curry's actions and inactions harmed the integrity of the judiciary.

4. Pattern of Conduct

¶ 14. While Judge Curry has not been sanctioned for misconduct before, her misconduct spans numerous cases. Judge Curry's conduct evidences a pattern, particularly as it relates to her participation in multiple, different cases involving her relatives and also her dismissals of three matters without a statutorily mandated hearing or order, involving petitioners' requested orders of protection for domestic abuse. The Court has held on numerous occasions that multiple incidents of improper behavior constitute a pattern. See Miss. Comm'n on Judicial Performance v. Darby , 143 So.3d 564, 570 (¶ 19) (Miss. 2014) ; Miss. Comm'n on Judicial Performance v. Dearman , 66 So.3d 112, 120 (¶ 30) (Miss. 2011) ; Miss. Comm'n on Judicial Performance v. Bradford , 18 So.3d 251, 256 (¶ 16) (Miss. 2009) ; Miss. Comm'n on Judicial Performance v. Cowart , 936 So.2d 343, 350 (¶ 25) (Miss. 2006). Judge Curry's conduct is not an isolated incident and is evidence of a pattern of misconduct.

5. Willfulness, Deprivation of Assets, or Exploitation of Position

¶ 15. The Commission submits that there is no allegation that Judge Curry's conduct was willful, intended to deprive the public of assets, or exploited her position as a justice court judge.

6. Mitigating or Aggravating Factors

¶ 16. No aggravating factors are identified. The mitigating factors are Judge Curry's cooperation in the investigation, her admissions of wrongdoing, her changing her handling of future cases to prevent further violations, her lengthy career in public service, and her lack of prior complaints against her.

CONCLUSION

¶ 17. The Court grants the parties' joint motion for approval of the Commission's recommendation and orders Justice Court Judge Mary Curry of the Eastern District of Claiborne County to be publicly reprimanded. Judge Curry shall appear on the first day of the next term of the Circuit Court of Claiborne County in which a jury venire is present, after the mandate in the instant case has issued, to be reprimanded by the presiding judge.

¶ 18. JUDGE MARY CURRY, JUSTICE COURT JUDGE OF THE EASTERN DISTRICT OF CLAIBORNE COUNTY, SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE CLAIBORNE COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THE COURT IN WHICH A JURY VENIRE IS PRES ENT AFTER THE ISSUANCE OF THE COURT'S MANDATE, WITH JUDGE MARY CURRY IN ATTENDANCE.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Judge Dearman had other violations, so in addition to the public reprimand, she also was suspended from office for thirty days without pay and assessed $100 in costs. Dearman , 66 So.3d at 120-121 (¶ 35).


author: CHAMBERLIN, JUSTICE, FOR THE COURT:

text:
    In the Interest of E.K., a Minor, Timothy King and Elizabeth King v. MISSISSIPPI DEPARTMENT OF CHILD PROTECTION SERVICES
    NO. 2017-CA-00506-SCT
    Supreme Court of Mississippi.
    August 2, 2018
    ATTORNEY FOR APPELLANTS: CHADWICK L. SHOOK, HATTIESBURG
    ATTORNEY FOR APPELLEE: LAWRENCE E. HAHN, COLUMBIA
    BEFORE RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. This appeal arises from the Marion County Youth Court's adjudication of E.K. as a neglected child. A number of errors stem from this adjudication. First, E.K. was adjudicated neglected even though her mother was not properly before the youth court and her father received no notice of the adjudication hearing. Second, after review, we find that the neglect petition was legally insufficient to provide notice to E.K. or her parents of the neglect charges. Third, the evidence offered to support a finding of neglect at the adjudication hearing was legally insufficient. As such, we vacate the youth court's adjudication order and render judgment in favor of E.K. and her parents.

FACTS AND PROCEDURAL HISTORY

¶ 2. Elizabeth A. King and Timothy King are the parents of E.K. E.K. was born on December 31, 2001. With a history of ADHD, epilepsy, autism, mental disability and obsessive, compulsive disorder (OCD), E.K. functioned on the level of a two-year-old.

¶ 3. Elizabeth and Timothy had been separated for two weeks at the time of the initial investigation in this case. They had been divorced for four years in the past before having remarried.

¶ 4. In December 2015, the Mississippi Department of Human Services Division of Family and Children's Services ("DHS") was contacted by law enforcement officials about Elizabeth and E.K. DHS responded to Elizabeth's residence on December 4, 2015. Law enforcement officers on the scene were concerned that Elizabeth was high on drugs, due to her repetitive 911 calls. According to the report, Elizabeth had called 911 multiple times, claiming that Timothy was in her attic or outside her home attempting to gain access to her residence.

¶ 5. DHS prepared an investigative report that catalogued its interactions with Elizabeth and E.K. "No abuse or neglect was substantiated" during DHS's visit, and the report found that Elizabeth loved E.K., was protective of her, and assisted her. Elizabeth and E.K. had a "great relationship." Further, there was no evidence of serious physical harm or injury and no reported or evident physical injuries. Timothy's history of domestic violence toward Elizabeth, Elizabeth's fear of Timothy, and the fact that Timothy "has not harmed [E.K.]" were catalogued in the report. Elizabeth denied using drugs but did test positive for marijuana use. Concerning Elizabeth's positive test for marijuana, the report stated that "this is being addressed and will be recommended for services by the agency." One narrative attached to the investigative report recounted that Elizabeth admitted to taking a "Colonapin [sic] to try to get some sleep." Elizabeth acknowledged that the "Colonapin" was not prescribed for her by a physician.

¶ 6. According to the report, Elizabeth secured a protective order against Timothy and changed the locks to her residence. Last, the report noted that DHS was ordered by the Marion County Youth Court "to open prevention case to monitor to [sic] safety in the home."

¶ 7. The record contains a letter that accompanied the DHS investigative report and recommended that the youth court informally monitor the Kings. The initial intake order entered in the youth court followed the letter's recommendation and ordered informal monitoring of the Kings or E.K. DHS's court summary next revealed that Elizabeth had entered a service agreement on January 27, 2016. According to the summary, Elizabeth had tested negative for drugs on January 5, 2016, and had tested "negative dilute" on February 2, 2016; March 3, 2016; and March 21, 2016. On April 20, 2016, Elizabeth had informed DHS that she was tired and frustrated and would not take any more drug tests.

¶ 8. As a result of Elizabeth's refusal, a second intake order was entered in the youth court. This intake order directed a formal petition to be entered. DHS directed a formal petition to adjudicate E.K. as a neglected child be entered. Count 1 of the petition alleged:

That on or about 04/20/2016, in MARION COUNTY, MISSISSIPPI, [E.K.] did become a NEGLECTED CHILD as defined by § 43-21-105(1) of the Mississippi Code of 1972, Annotated. Prevention case was open [sic] to monitor the safety issues in the home. During a visit to the home the mother told the DHS Worker that she was tires [sic] and frustrated and would not do any more drug tests.

Renee Porter was appointed as the attorney and guardian ad litem (GAL) for E.K.

¶ 9. DHS issued summons to Elizabeth and Timothy on May 18, 2016, for an adjudication hearing on June 6, 2016. The summons was returned unserved on June 2, 2016, with the note: "unable to make contact."

¶ 10. The adjudication hearing was held on June 6, 2016. Elizabeth, E.K., and the GAL were present. At the hearing, Michelle Tony, a DHS caseworker, testified to the grounds for the neglect petition. Tony testified that the agency had been contacted by law enforcement officers who were concerned that Elizabeth was mentally ill. Tony maintained that "[t]he home checked out fine" and that a prevention case was opened after Elizabeth tested positive for marijuana. In response to the GAL's questioning, Tony also mentioned that Elizabeth was refusing to take any additional drug tests. From the bench, the youth court then adjudicated E.K. as neglected.

¶ 11. It appears from the transcript that the youth court immediately proceeded to the disposition hearing. The GAL asked Elizabeth if she would take a drug test, and-for the first time on the record-Elizabeth spoke, replying: "I'll go take a drug test, but my child ain't neglected. And you ... every time you are at my house, you state that [E.K.] is in the best of care. Did you not? Do you not--" The prosecutor immediately objected, and the GAL moved to continue the hearing to allow Elizabeth to take a drug test. The court then questioned Elizabeth concerning the "negative-dilute" drug tests. The court informed Elizabeth, "We're concerned about drug use. If there's no drug use, we're not concerned. We are concerned about the child. She seems to be doing well under your care, but we want to continue that. We just need a little help from you." Elizabeth stated, "If [the hair follicle drug test is] court ordered, I'll take it." The youth court continued the hearing until June 20, 2016, and ordered Elizabeth and Timothy to take a hair-follicle drug test.

¶ 12. On June 20, 2016, the youth court entered an emergency custody order, awarding custody of E.K. to the Marion County Department of Human Services pending a shelter hearing. Another emergency custody order awarded custody of E.K to DHS and ordered law enforcement officials to assist in locating E.K. At the shelter hearing held on June 28, 2016, Tony explained that E.K. could not be located during this time. Tony testified that on June 25, 2016, law enforcement officials found E.K. and DHS took custody of her. At this same hearing, counsel for the Kings questioned the sufficiency of the adjudication of E.K. as neglected. The GAL objected to the attacks on the adjudication of E.K. After the hearing, the youth court determined that custody should remain with DHS. The youth court also ordered Elizabeth and Timothy to submit to a hair-follicle drug test.

¶ 13. Elizabeth's and Timothy's counsel formally entered an appearance on July 1, 2016, and filed two motions. The first motion was to set aside the shelter order, to return E.K. to Elizabeth and Timothy and to stay local proceedings; the second motion was for permission to seek interlocutory appeal. The second motion attacked the evidentiary basis of the adjudication of E.K. as a neglected child. After a hearing, the youth court entered an order permitting Elizabeth's and Timothy's interlocutory appeal "of this Court['s] June 6, 2016 Adjudication Order...."

¶ 14. On February 21, 2017, the youth court again ordered Elizabeth to submit to a hair-follicle test due to her test showing "diluted." This time, though, it found that Timothy did not have to submit to a hair follicle test "in that none of his test[s] were questionable." Elizabeth submitted to the hair-follicle test on March 3, 2017. On April 3, 2017, the youth court entered a permanency order, granting custody of E.K to Elizabeth and Timothy.

¶ 15. E.K., Elizabeth, and Timothy now appeal the sufficiency of the neglect petition, the sufficiency of the evidence supporting adjudication, the lack of notice and service of process to Elizabeth and Timothy for the adjudication hearing, several of the custody orders and the orders concerning the hair-follicle drug tests. The issues related to the adjudication order are dispositive of the appeal before us.

STANDARD OF REVIEW

¶ 16. " 'The appellate standard of review for youth court proceedings is the same as that which we apply to appeals from chancery court....' " In re J.P. , 151 So.3d 204, 208 (Miss. 2014) (quoting A.B. v. Lauderdale Cty. Dep't of Human Servs. , 13 So.3d 1263, 1266-67 (Miss. 2009) ). Also, "[t]his Court reviews matters of law de novo." Id. Statutory interpretation, of course, is a matter of law. 5K Farms, Inc. v. Mississippi Dep't of Revenue , 94 So.3d 221, 225 (Miss. 2012) (citing Ameristar Casino Vicksburg, Inc. v. Duckworth , 990 So.2d 758, 759 (Miss. 2008) ).

ANALYSIS

I. Notice, Waiver of Service of Process and Waiver of the Right to Representation

¶ 17. The Kings argue that Elizabeth did not knowingly or voluntarily waive her right to service of process or her right to representation of counsel. They also maintain that Timothy received no notice of the adjudication hearing. After review of the record, we agree with the Kings.

¶ 18. Several statutory provisions of the Youth Court Act govern the issue of notice, waiver of the right to service of process, and protection of the right to counsel. The policy statement of the Youth Court Act provides, "It is the public policy of this state that the parents of each child shall be primarily responsible for the care, support, education and welfare of such children...." Miss. Code Ann. § 43-21-103 (Rev. 2015) (emphasis added). "Parent" is defined as "the father or mother to whom the child has been born, or the father or mother by whom the child has been legally adopted." Miss. Code Ann. § 43-21-105(e) (Supp. 2017). Also, in the Youth Court Act, "The singular includes the plural, the plural the singular and the masculine the feminine when consistent with the intent of this chapter." Miss. Code Ann. § 43-21-105(w) (Rev. 2015).

¶ 19. In a youth court proceeding,

(1) Each party shall have the right to be represented by counsel at all stages of the proceedings including ... adjudicatory and disposition hearings ....
(2) When a party first appears before the youth court, the judge shall ascertain whether he is represented by counsel and, if not, inform him of his rights including his right to counsel. If the court determines that a parent or guardian who is a party in an abuse, neglect or termination of parental rights proceeding is indigent, the youth court judge may appoint counsel to represent the indigent parent or guardian in the proceeding.

Miss. Code Ann. § 43-21-201(1) - (2) (Rev. 2015). Further, "[a]ll parties ... shall have the right at any hearing in which an investigation, record or report is admitted in evidence ... to subpoena, confront and examine the person who prepared or furnished data for the report[ ] and ... to introduce evidence controverting the contents of the report." Miss. Code Ann. § 43-21-203(9)(a)-(b) (Rev. 2015).

¶ 20. Once a petition is filed and a hearing is set:

(1) ... the judge ... shall order the clerk of the youth court to issue a summons to the following to appear personally at such hearing:
(a) the child named in the petition;
(b) the person or persons who have custody or control of the child;
(c) the parent or guardian of the child if such parent or guardian does not have custody of the child; and
(d) any other person whom the court deems necessary.

Miss. Code Ann. § 43-21-501(1)(a)-(d) (Rev. 2015) Also,

(2) A party other than the child may waive service of summons on himself by written stipulation or by voluntary appearance at the hearing and in the case of written stipulation or voluntary appearance, the youth court may, in its discretion, proceed to a hearing regardless of the date set for the hearing if all other parties are properly before the youth court. At the time of the waiver, a copy of the petition shall be given to the party.

Miss. Code Ann. § 43-21-507(2) (Rev. 2015).

¶ 21. Further, under the Youth Court Act,

(1) At the beginning of each adjudicatory hearing, the youth court shall:
(a) verify the name, age and residence of the child who is the subject of the cause and ascertain the relationship of the parties, each to the other;
(b) ascertain whether all necessary parties are present and identify all persons participating in the hearing;
(c) ascertain whether the notice requirements have been complied with and, if not, whether the affected parties intelligently waived compliance in accordance with Section 43-21-507 ;
(d) explain to the parties the purpose of the hearing and the possible dispositional alternatives thereof; and
(e) explain to the parties:
(i) the right to counsel;
(ii) the right to remain silent;
(iii) the right to subpoena witnesses;
(iv) the right to cross-examine witnesses testifying against him; and
(v) the right to appeal.
(2) The youth court should then ascertain whether the parties before the youth court are represented by counsel. If a party before the youth court is not represented by counsel, the youth court shall ascertain whether the party understands his right to counsel. If the party wishes to retain counsel, the youth court shall continue the hearing for a reasonable time to allow the party to obtain and consult with counsel of his choosing....

Miss. Code Ann. § 43-21-557(1) - (2) (Rev. 2015). "When used in a statute, the word 'shall' is mandatory and the word 'may' is discretionary." D.D.B. v. Jackson Cty. Youth Court , 816 So.2d 380, 382 (Miss. 2002).

¶ 22. Several cases also are implicated in this analysis. Much of Mississippi's caselaw that involves notice and service of process in youth court interpreted previous versions of the Youth Court Act. For instance, this Court, in reversing a delinquency adjudication in which notice was not served to the minor or his parents, recognized that "the Court has no jurisdiction of the person until process has been served upon the minor and his parents, or persons standing in loco parentis." In Interest of Edwards , 298 So.2d 703, 704 (Miss. 1974). Further this Court declared that, under the Mississippi Code of 1941, "notice to the parent is an indispensable prerequisite to the jurisdiction of the [youth] court to hear and determine the case, unless such notice be waived by the voluntary appearance of such parent." Sharp v. State , 240 Miss. 629, 127 So.2d 865, 869 (1961) ; see Hopkins v. Youth Court of Issaquena Cty. , 227 So.2d 282, 284 (Miss. 1969) ("The youth court is without jurisdiction unless the parents or guardian if available, be summoned as required by statute."); Monk v. State , 238 Miss. 658, 116 So.2d 810, 810-11 (1960) ; Walker v. State , 238 Miss. 532, 119 So.2d 277, 277 (1960).

¶ 23. Under the current Youth Court Act, this Court has affirmed these same principles. See In re J.P. , 151 So.3d 204, 210 (Miss. 2014) (quoting Hopkins , 227 So.2d at 284 ) ("The youth court is without jurisdiction unless the parents or guardian if available, be summoned as required by statute. ") (emphasis in original) (reversing on grounds other than lack of notice to parent). In In re N.W. , this Court reversed the adjudication of a minor where the father lacked notice of the adjudication hearing. In re N.W. , 978 So.2d 649, 654 (Miss. 2008). There, the mother was present at the adjudication hearing, but this Court-citing Section 43-21-557-recognized reversible error where there was no evidence that the father had been noticed of the hearing. Id.

¶ 24. Also, the Court of Appeals has found these same principles dispositive under the current Youth Court Act. See In Interest of M.M. , 220 So.3d 285, 288 (Miss. Ct. App. 2017) ("Even if the mother had actual notice of the hearing via her conversations with the MDHS employee, actual notice is insufficient to cure a jurisdictional defect in service of process. ") (emphasis added). The In Interest of M.M. court relied on both Sharp and In re J.P. as well as Section 43-21-507 to reverse and render the adjudications. Id.

¶ 25. Beyond the issue of notice, this Court has reversed an adjudication of neglect where the youth court failed to instruct the child's mother and stepfather of their right to counsel. In Interest of I.G. , 467 So.2d 920, 922 (Miss. 1985). The I.G. Court relied on both Sections 43-21-201 and 43-21-557 to reverse the youth court's citation for contempt. Id.

Elizabeth

¶ 26. Elizabeth was a required party to E.K.'s neglect adjudication. Miss. Code Ann. § 43-21-501(1)(c) (Rev. 2015). While service of process had been issued to her, it was returned, marked "unable to make contact." There is no evidence in the record or the transcript that service was perfected on her.

¶ 27. It is clear that Elizabeth, though, was present at the adjudicatory hearing and the initial disposition hearing. Still, her presence alone is not enough to find that she waived her right to service of process. Even a cursory review of the record reveals that the youth court did not engage Elizabeth on the record to determine if she waived her rights under either Section 43-21-507 or Section 43-21-557.

¶ 28. This lack of interaction with Elizabeth also infringed Elizabeth's due-process right to representation. Under Section 43-21-201, she had the right to representation of counsel. The same section places a duty upon the youth court to insure that Elizabeth is aware of her right. Miss. Code Ann. § 43-21-201(2) (Rev. 2015). Clearly indicating the importance of Elizabeth's right to representation, Section 43-21-557 reiterates the youth court's duty to make sure that a party understands her right to counsel. Miss. Code Ann. § 43-21-557(1)(e)(I) (Rev. 2015). It further provides a right to a continuance should the party wish to engage representation. Miss. Code Ann. § 43-21-557(2) (Rev. 2015).

¶ 29. While Elizabeth does not need to show prejudice, she can here. For instance, the first time that Elizabeth spoke on the record was during the initial disposition hearing, which was held immediately after E.K was adjudicated neglected. Speaking for the first time, Elizabeth consented to a drug test, but, in doing so, revealed that she did not consent to or agree with the youth court's adjudication of E.K. as a neglected child. Elizabeth declared: "I'll go take a drug test, but my child ain't neglected. And you ... every time you're at my house, you state that [E.K.] is in the best care. Did you not? Do you not --" At this point, the youth court prosecutor interrupted Elizabeth with an objection, presumably since E.K. already had been adjudicated as neglected. The youth court eventually continued the disposition hearing and ordered a drug test for Elizabeth.

¶ 30. The first time that Elizabeth spoke on the record, she immediately sought to contradict the evidence that was entered at the adjudication hearing, as was her right under Section 43-21-557(1)(e)(iv). The fact that Elizabeth improperly raised this evidence at the disposition hearing instead of at the adjudication hearing only underscores her lack of understanding of the proceedings and the gravity of the youth court's violation of her right to representation.

Timothy

¶ 31. Like Elizabeth, Timothy also was a required party to E.K.'s neglect adjudication. Miss. Code Ann. § 43-21-501(1)(c) (Rev. 2015). The record, though, is clear that he received no notice of either the adjudication hearing or the initial disposition hearing. While summons was issued to him, as to Elizabeth, it also was returned, marked "unable to make contact." To the extent that Timothy could not be found or served (an argument not raised by DHS on appeal), Section 43-21-509 provides the youth court with the authority to issue a warrant to bring him "into the custody of the youth court." Miss. Code Ann. § 43-21-509 (Rev. 2015).

¶ 32. Without the required notice, Timothy's situation is analogous to the father in In re N.W. In re N.W. , 978 So.2d at 654. Timothy was denied his right to contest the adjudication of E.K. and was not noticed concerning the initial disposition hearing.

¶ 33. Timothy also can prove prejudice. Beyond the fact that his daughter was found to be neglected without his having an opportunity to contest the adjudication, the youth court ordered Timothy to submit to drug screen, even though he was not before the court. Such an order is clearly void and a violation of Timothy's rights.

¶ 34. Elizabeth did not knowingly waive her rights to service of process or to representation by counsel. Timothy was not noticed and was not before the youth court for the adjudicatory hearing or the initial disposition hearing. The youth court's adjudication of E.K. as neglected and subsequent order requiring a drug test were in violation of the Kings' rights.

II. Sufficiency of the Petition of Neglect

¶ 35. The Kings also contest the sufficiency of the petition alleging that E.K. was a neglected child. "[A] petition which institutes a youth court proceeding must recite factual allegations specific and definite enough to fairly apprise the juvenile, his parents, custodians or guardians of the particular act or acts of misconduct or the particular circumstances which will be inquired into at the adjudicatory proceedings." In Interest of Dennis , 291 So.2d 731, 733 (Miss. 1974).

¶ 36. Section 43-21-105 defines"neglected child" within the Youth Court Act:

(l) "Neglected child" means a child:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.

Miss. Code Ann. § 43-21-105(l)(i)-(iv) (Rev. 2015). Section 43-21-455 specifically addresses the content of a neglect petition:

(1) The petition shall set forth plainly and concisely with particularity:
(a) identification of the child, including his full name, birth date, age, sex and residence;
(b) identification of the parent, guardian or custodian including the name and residence of the child's parents, the name and residence of the child's legal guardian, if there be one, any person or agency in whose custody the child may be and the child's nearest relative if no parent or guardian be known;
(c) a statement of the facts, including the facts which bring the child within the jurisdiction of the youth court and which show the child is ... a neglected child ...;
...
(e) a prayer for the type of adjudicatory relief sought; and
(f) if any of the facts herein required are not known by the petitioner.

Miss. Code Ann. § 43-21-455(1)(a)-(c), (e)-(f) (Rev. 2015).

¶ 37. Precedent on this point of law is sparse in Mississippi. Soon after the current Youth Court Act was passed into law, this Court addressed a number of petitions that it found to be insufficient. Most, if not all, of these cases were delinquency proceedings that relied on the Court's analysis in In Interest of Dennis . There, this Court determined that the petition on which the minor was adjudicated was insufficient to notice the minor or his parents of the specific acts of misconduct. In Interest of Dennis , 291 So.2d at 733. This Court held that "where a charge of delinquency is based upon the violation of a criminal law, the petition must charge the offense with the same particularity required in a criminal indictment." Id. The Court ultimately reversed the delinquency adjudication where "the facts which would bring [the minor] within the purview of the 'Youth Court Law' were stated in the petition as 'grand larceny and breaking and entering.' " Id. at 732-33 ; see also In Interest of Dollar , 293 So.2d 458, 459 (Miss. 1974) ; In Interest of Burnworth , 293 So.2d 461, 462 (Miss. 1974) ; In Interest of Dudley , 310 So.2d 919, 920 (Miss. 1975).

¶ 38. First, we acknowledge the difference between a delinquency proceeding (which is quasi-criminal) and a neglect proceeding. While a neglect petition perhaps should not be held to the same standard as a criminal indictment, the petition-given Sections 43-21-455 and 43-21-105 -has to be legally sufficient to provide the minor and her parents notice of "the particular circumstances which will be inquired into at the adjudicatory proceedings." In Interest of Dennis , 291 So.2d at 733.

¶ 39. The petition here cited the definition of "neglected child" under Section 43-21-105(1). The facts described in the petition to adjudicate E.K. as neglected, though, were minimal. In total, the facts in the petition read: "Prevention case was open to monitor the safety issues in the home. During a visit to the home the mother told the DHS Worker that she was tired and frustrated and would not do any more drug tests."

¶ 40. Without any connection to E.K. as a neglected child these facts failed to inform E.K., Elizabeth or Timothy of the particular circumstances that would be adjudicated. The Kings were left to guess the connection between Elizabeth's frustration and decision not to submit to further testing and the neglect of E.K. There were no facts to "show" that E.K. was "a neglected child." Miss. Code Ann. § 43-21-455(1)(c) (Rev. 2015).

¶ 41. The insufficiency of the petition is clearer when considering the context of this case as revealed by the record. The investigative reports are full of commendations of Elizabeth's care for E.K., their healthy relationship and the love that E.K. demonstrates towards Elizabeth. In the absence of a causal connection between the facts alleged in the petition and the petition's charge of neglect, the petition was legally insufficient to provide notice to E.K., Elizabeth or Timothy of "the particular circumstances which w[ere to] be inquired into at the adjudicatory proceedings." In Interest of Dennis , 291 So.2d at 733.

III. Sufficiency of the Evidence of Adjudication

¶ 42. The Kings further maintain that the evidence on which the youth court adjudicated E.K. as neglected was insufficient. This Court has described the standard of review of the sufficiency of the evidence supporting an adjudicatory order:

When a Youth Court makes an adjudication of neglect, this Court considers all the evidence before the Youth Court in the light most favorable to the State. If the evidence so considered is opposed to the finding of the Youth Court with such force that "reasonable men" could not have found as the Youth Court did by a preponderance of the evidence, this Court must reverse.

In Interest of C.R. , 604 So.2d 1079, 1083 (Miss. 1992) (citations and quotations omitted); see also Miss. Code Ann. § 43-21-561 (Rev. 2015) (recognizing the preponderance-of-the-evidence standard in neglect adjudications). Section 43-21-551 provides that "an adjudicatory hearing shall be held ... to determine whether there is legally sufficient evidence to find that the child is ... a neglected child." Miss. Code Ann. § 43-21-551(1) (Rev. 2015). Moreover, "[i]n arriving at its adjudicatory decision, the youth court shall consider only evidence which has been formally admitted at the adjudicatory hearing." Miss. Code Ann. § 43-21-559(1) (Rev. 2015).

¶ 43. From a review of the transcript, we find no evidence entered at the adjudication that related to E.K.'s status as a neglected child. Tony, the DHS caseworker, testified that Elizabeth's home checked out fine and that "she was just very frightened of her husband." Tony maintained that Elizabeth was given a drug test and tested positive for marijuana. She also testified that Elizabeth refused to take further drug tests.

¶ 44. None of the testimony at the hearing proved that E.K. was neglected. No evidence was offered to show that Elizabeth's fear of Timothy somehow led to E.K. being neglected. Further, the evidence of Elizabeth's positive test for marijuana usage-while potentially relevant-was not shown to have affected E.K. at all. In fact, Tony testified that Elizabeth's home "checked out fine"-evidencing Elizabeth's care for E.K. In order to have been sufficient to adjudicate E.K. as a neglected child, the evidence must have shown that she actually was neglected.

¶ 45. Elizabeth's marijuana usage does not negate the requirement of a causal connection between the drug usage and the neglect. This is a familiar concept under the Youth Court Act in other contexts. For instance, a positive drug test for marijuana usage is insufficient on its own to establish probable cause for the issuance of a custody order. Miss. Code Ann. § 43-21-301(3) (Rev. 2015). In part, Section 43-21-301 reads:

A finding of probable cause ... shall not be based solely upon a positive drug test of a child's parent for marijuana; however, a finding of probable cause may be based upon an evidence-based finding of harm to the child or a parent's inability to provide for the care and supervision of the child due to the parent's use of marijuana.

Id. (emphasis added). Here, there was no testimony or evidence of any relation between Elizabeth's positive test result and E.K.'s status as neglected.

¶ 46. The youth court did not err in ordering DHS to monitor the Kings. Its authority to do so-based on a preliminary inquiry after receiving a report from DHS-is found in Mississippi Code Section 43-21-357(2)(c). The evidence of Elizabeth's drug usage was sufficient for DHS to monitor the Kings and E.K. Further, Elizabeth's later, diluted negative results "may [have] create[d] suspicion, or perhaps even an inference of drug use" that merited further monitoring and investigation. A.B. v. Lauderdale Cty. Dep't of Human Servs. , 13 So.3d 1263, 1268 (Miss. 2009).

¶ 47. Elizabeth's refusal to submit to further drug screens, however, did not automatically render E.K. neglected. As Elizabeth had entered into a service agreement with DHS, she arguably was violating the youth court's initial intake order that required DHS to monitor E.K. The solution to Elizabeth's refusal to take additional drug tests, though, was to seek to enforce the intake order against Elizabeth in the youth court. The solution was not to have E.K. adjudicated neglected where the evidence did not support that finding. Even when viewed in the light most favorable to the adjudication, the evidence failed to demonstrate that E.K. was neglected within the meaning of Section 43-21-105(l).

CONCLUSION

¶ 48. First, a review of the record and transcript reveals that Elizabeth did not knowingly or voluntarily waive her right to service of process or her right to representation of counsel for E.K.'s adjudicatory hearing and the subsequent disposition hearing. The record also is devoid of any evidence of notice to Timothy of his daughter's adjudication. Despite the fact that Elizabeth was not properly before the court and Timothy was not before the court at all, the youth court adjudicated their daughter neglected and ordered them to submit to drug screens. Second, the neglect petition was legally insufficient to give notice to E.K., Elizabeth or Timothy of "the particular circumstances which w[ere to] be inquired into at the adjudicatory proceedings." In Interest of Dennis , 291 So.2d at 733. Third, the evidence offered at the adjudicatory hearing of E.K.'s status as neglected was insufficient to support the neglect adjudication.

¶ 49. While we do not doubt that the youth court acted in a sincere belief that it had E.K.'s interests in mind, the record before us reveals a worrisome disregard for the provisions of the Youth Court Act. The provisions of the Youth Court Act are designed to protect "the child's best interest." Miss. Code Ann. § 43-21-103 (Rev. 2015). Further, the provisions support our state's public policy "that the parents of each child shall be primarily responsible for the care, support, education and welfare of such children." Id. Here, all of the proceedings after the adjudication hearing are hopelessly infected by the errors discussed above. Thus, we vacate the youth court's adjudication order and render final judgment in favor of the Kings.

¶ 50. VACATED AND RENDERED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL AND ISHEE, JJ., CONCUR. BEAM, J., NOT PARTICIPATING.

      This Court does not use the name of a minor child in an opinion dealing with child custody and allegations of neglect. Therefore, the initials "E.K." will be used to refer to the child at issue here.

      The Mississippi Department of Child Protection Services is styled as the appellee in this case. The Mississippi Department of Child Protection Services was created as Mississippi's lead child welfare agency, separate from the Mississippi Department of Human Services. Miss. Code Ann. § 43-26-1 (Supp. 2017). As the majority of the record refers to the Mississippi Department of Human Services, we do so as well. Further, the Youth Court Act continues to refer to the Mississippi Department of Human Services throughout its provisions. See Miss. Code Ann. §§ 43-21-101 -915 (Rev. 2015).

      DHS notes that this could be a misspelling of "Klonopin," the chemical name for which is "clonazepam."

      Section 43-21-601 of the Youth Court Act provides that the disposition hearing "shall be separate, distinct and subsequent to the adjudicatory hearing." Miss. Code Ann. § 43-21-201(1) (Rev. 2015). From a review of the transcript, it is not readily apparent that the youth court heeded this provision. See In Interest of C.R. , 604 So.2d 1079, 1082 (Miss. 1992) (reversing for failure to hold a disposition hearing separate from the adjudicatory hearing). As the errors discussed infra are dispositive, we do not base our decision on this possible error.

      This Court denied the petition for interlocutory appeal on September 21, 2016.

      E.K. had been at home under a ninety-day trial placement since January 17, 2017.

      The precise identity of whom Elizabeth was questioning is unclear from the transcript. It is likely, though, that she was questioning the DHS caseworker, who had just testified during the adjudication hearing.

      Even if Elizabeth knowingly waived her rights, the youth court still would have erred in proceeding to the adjudication, as Timothy was not present for the hearing. "[T]he youth court may, in its discretion, proceed to a hearing ... if all other parties are properly before the youth court." Miss. Code Ann. § 43-21-507(2) (Rev. 2015).

      Further, the youth court's complimentary comments to Elizabeth at the initial disposition hearing-just after the adjudication of E.K. as neglected-support the conclusion that Elizabeth's drug use had not affected E.K. Addressing Elizabeth's drug use, the youth court stated: "We're concerned about drug use. If there's no drug use, we're not concerned. We are concerned about the child. She seems to be doing well under your care , but we want to continue that. We just need a little help from you." (Emphasis added.)