author: TINDELL, J., FOR THE COURT: WESTBROOKS, J., DISSENTING:

text:
    C.S.H., Appellant v. LOWNDES COUNTY DEPARTMENT OF HUMAN SERVICES, Appellee
    NO. 2015-CA-01059-COA
    Court of Appeals of Mississippi.
    May 1, 2018
    ATTORNEY FOR APPELLANT: GARY GOODWIN, COLUMBUS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KURT STEVEN SAUL JR., JACKSON
    EN BANC.
   TINDELL, J., FOR THE COURT:

¶ 1. The Lowndes County County Court terminated CSH's parental rights to her two sons, Leo and Quinn. On appeal, CSH raises several issues, which we restate as follows: (1) whether the county court failed to apply the statutory prerequisites for parental-rights termination; (2) whether the county court erroneously found the statutory prerequisites were met by clear and convincing evidence; and (3) whether the county court erroneously found the statutory grounds for parental-rights termination were met by clear and convincing evidence.

¶ 2. Finding no error, we affirm the county court's judgment.

FACTS

¶ 3. CSH is the biological mother of Leo, born July 2007, and Quinn, born June 2008. Following a June 11, 2008 hearing, the Lowndes County Youth Court found CSH had "neglected and/or abandoned" eleven-month-old Leo. That same day, with the goal of eventually being reunited with Leo, CSH entered into an individualized service plan with the Lowndes County Department of Human Services (DHS). See Miss. Code Ann. § 43-15-13(4) (Rev. 2015). By signing the service agreement, CSH agreed to (1) obtain housing and maintain utilities; (2) obtain employment; (3) submit to random drug tests; (4) enroll in a drug-treatment program and attend Alcoholics Anonymous (AA) meetings; and (5) request monthly visits with Leo. The following day, on June 12, 2008, the youth court entered an order that placed Leo in DHS's custody and provided for a six-month review of the matter.

¶ 4. Two months later, on August 12, 2008, the youth court found CSH had also neglected her younger son, Quinn. The youth court ordered three-month-old Quinn to also be placed into DHS's custody, and the court scheduled a six-month review. Unlike Leo's hearing, CSH failed to attend Quinn's August 12, 2008 hearing. Although the youth court's August 12, 2008 order made no mention of CSH entering into a second service agreement, the record reflects that, on November 3, 2008, CSH and her caseworker reinitialed the previous service agreement from June 11, 2008.

¶ 5. On June 3, 2009, the youth court held Leo's permanency-review hearing, which CSH attended. By order entered August 5, 2009, the youth court determined that Leo was doing well with his foster parents and that CSH had failed to complete the terms of her service agreement. The youth court ordered that Leo remain in DHS custody, with reunification designated as his permanent plan and adoption designated as his alternate plan. Although the youth court found that termination of parental rights was not currently in Leo's best interest, the court decided to revisit the issue after granting CSH an additional six months to make progress on her service agreement. The youth court ordered that CSH be admitted to an inpatient drug-treatment program and that she complete her service-agreement requirements. The court further ordered DHS to help CSH find an inpatient drug-treatment facility.

¶ 6. On the same day as the August 5, 2009 order for Leo, the youth court held a permanency-review hearing for CSH's younger son, Quinn. Unlike Leo's hearing, CSH was not in attendance for Quinn's August 5, 2009 permanency-review hearing. In its August 5, 2009 order related to Quinn's permanency-review hearing, the youth court noted the following: Quinn had cocaine in his system when he was born, which prompted DHS to remove him from CSH's custody; Quinn was currently doing well with his foster parents; and CSH had failed to complete the terms of her service agreement. After reviewing the evidence and determining that parental-rights termination served Quinn's best interest, the youth court changed Quinn's permanent plan from reunification to adoption.

¶ 7. On December 2, 2009, the youth court conducted an annual review of Leo's case. Barbara Williams, the social worker assigned to both Leo's and Quinn's cases, testified that Leo had been in DHS's custody since about May 2008. Williams stated that CSH had been scheduling visits with her sons and that the children had appeared to warm up to CSH during the last two visits. Williams also testified, though, that CSH had not completed any part of her service agreement and had tested positive for cocaine in both June and July 2009. After the two failed drug tests, the drug-rehabilitation program working with CSH recommended that she enroll in an inpatient drug-treatment program. Williams admitted, however, that CSH, who was unemployed and received no federal assistance, lacked the means to pay for the inpatient treatment. After testifying that Leo needed permanence, Williams recommended that the youth court terminate CSH's parental rights.

¶ 8. After reviewing Leo's case, the youth court entered a new permanency order on September 23, 2010, effective from the time of the December 2, 2009 hearing. The youth court concluded that parental-rights termination served Leo's best interest "[d]ue to [CSH's] failure to complete the terms of her service agreement[,] and due to the young age of [Leo] and the length of time [he] has been in foster care[.]" The youth court therefore changed Leo's permanent plan to adoption and ordered DHS to proceed with parental-rights termination.

¶ 9. On May 13, 2011, DHS filed a petition to terminate CSH's parental rights to both Leo and Quinn. Almost four years later, after numerous continuances, the county court conducted a hearing on March 9, 2015. During the four-year delay, CSH successfully completed an inpatient drug-treatment program, got married, and gave birth to a daughter, who was about four years old.

¶ 10. At the termination hearing, Williams testified that she became involved with the case in May 2008 when DHS received a 911 report about Leo. Upon investigating, Williams discovered that CSH had left Leo with a non-relative for about four months. The non-relative could no longer care for Leo, and CSH's whereabouts were unknown. DHS took Leo to a doctor, who admitted him to the hospital for an abscess near his groin and upper respiratory issues. The following month, in June 2008, CSH gave birth to Quinn. After Quinn tested positive for cocaine, DHS took custody of him at the hospital. Williams confirmed that Leo and Quinn had remained in DHS's custody since they entered in 2008.

¶ 11. According to Williams, CSH partially complied with her June 2008 service agreement. Williams explained that CSH had six months to make progress on her service agreement and that the youth court even granted her an additional six months to complete the requirements. Starting around November 2008, CSH began to schedule and attend visits with her children. She also obtained housing when she married her husband, but she never obtained employment or attended AA meetings. Although CSH eventually completed an inpatient drug-treatment program, Williams testified that she did so outside the allotted time frame. Williams stated that, between November 2008 and January 2010, CSH continued to struggle with drug use. Then, in January 2010, CSH entered an inpatient drug-treatment program. Despite CSH's eventual completion of the program around May 2010, Williams testified that she no longer tried to reunify CSH with her children because the youth court had already changed the children's permanent plan to adoption. However, Williams acknowledged that, after CSH had completed the inpatient program in 2010, she had passed all her subsequent random drug tests and done everything she could to satisfy the service-agreement requirements to regain custody of her children. Williams also testified she was satisfied that CSH presented no danger of neglect or abuse to her almost four-year-old daughter, who lived with CSH and her husband.

¶ 12. Having observed CSH's visits with Leo and Quinn, Williams testified there had been substantial erosion of the mother-child relationship due to CSH's absence during the first few months of the boys' lives. By contrast, Williams stated that Leo and Quinn had bonded with their foster family, who took care of all the boys' needs. Williams averred that DHS had done all it could to help CSH timely complete her service-agreement requirements for reunification. Williams also stated that, in her professional opinion, termination of CSH's parental rights served Leo's and Quinn's best interest.

¶ 13. The children's pediatrician next testified that both boys were relatively healthy, although Leo experienced occasional wheezing and eczema and Quinn had been diagnosed with ADD/ADHD. The pediatrician stated that Quinn needed to remain on his current ADD/ADHD medications for the foreseeable future but could hopefully learn to manage the condition on his own. The pediatrician also testified that, while all children benefit from a stable and consistent environment, children with ADD/ADHD especially need such an environment. Based on her observations of Leo's and Quinn's interactions with their foster parents, the pediatrician testified that the boys had bonded with their foster family.

¶ 14. Leah Headings, a private-practice clinical social worker, next testified that DHS referred Leo and Quinn to her in December 2012 to assess the boys' adjustment to their foster home and the effects of their monthly visits with CSH. Headings formed her assessment after completing twenty-four individual sessions with each child. Headings concluded the children were thriving in their foster placement and considered their foster parents to be their mother and father. Headings testified Leo eventually seemed to grasp that, along with his foster mother, CSH was also his mother. However, Headings stated she never saw any indication that Quinn understood CSH's relationship to him. In Headings's opinion, removing the boys from their current foster-care placement "would be totally devastating[ and] confusing and would have lifelong implications" on the children. She further testified that she believed it was in the boys' best interest to remain with their foster parents.

¶ 15. Mary Reese, a DHS adoption specialist, next testified about the visits she observed between CSH and the boys. Reese testified that Leo and Quinn appeared to lack a strong bond with CSH. Reese stated the boys never ran up and greeted CSH at the beginning of the visits, nor did they appear disappointed when the visits ended. According to Reese, CSH had to initiate most of the interaction with the boys. By contrast, Reese said that Leo and Quinn possessed a strong bond with their foster parents, whom they identified as their actual parents. Reese testified she believed remaining with their foster parents served the children's best interest because that was the only home the boys had ever really known.

¶ 16. Leo and Quinn's foster parents, the Smiths, also testified that they had a strong bond with the boys and that the boys considered the Smiths to be their parents. The Smiths stated they had observed no similar attachment between the boys and CSH. If the court terminated CSH's parental rights, the Smiths expressed their desire to adopt the boys. The Smiths further testified that they believed removing Leo and Quinn from their home would negatively affect the children.

¶ 17. CSH next testified about the children's removal from her custody and her attempts at reunification. CSH first began using drugs when she was fourteen. Although she was not on drugs at the time of Leo's birth in 2007, CSH testified that she subsequently relapsed. She left Leo with a friend, and then DHS took custody of him. CSH managed to stop using drugs again for a short time but suffered a relapse while pregnant with Quinn. Because Quinn tested positive for cocaine as a newborn, DHS took custody of him at the hospital. In January 2010, while pregnant with her daughter, CSH entered an inpatient drug-rehabilitation program. CSH completed the program in May 2010. In August 2010, CSH got married, and she testified that she had remained drug free since then. CSH stated that the monthly one-hour visits with Leo and Quinn failed to provide sufficient time to bond. Although she admitted that Leo and Quinn viewed the Smiths as their parents, CSH thought she could establish a strong bond with her children if the court returned them to her custody. CSH further stated that she and her husband possessed sufficient resources to financially support Leo and Quinn if the court returned them to her.

¶ 18. The guardian ad litem (GAL) testified that, although CSH appeared to be a fit parent to her daughter, he noticed a stark difference in CSH's interactions with her daughter and with Leo and Quinn. While the daughter clearly viewed CSH as her mother, the GAL testified that Leo and Quinn obviously did not. The GAL stated that CSH had even admitted to him that her relationship with her sons had eroded and that they viewed the Smiths as their parents. Based on his observations and case-file review, the GAL recommended that remaining with the Smiths would serve the children's best interest.

¶ 19. On May 14, 2015, the county court entered a judgment finding that clear and convincing evidence supported multiple statutory grounds for the termination of CSH's parental rights. The county court found as follows: First, CSH failed to exercise reasonable available visitation with the children. See Miss. Code Ann. § 93-15-103(3)(d)(i) (Rev. 2013). Second, CSH failed to implement her agreed-upon service plan, which prevented DHS from returning the children to her. See id. § 93-15-103(3)(d)(ii). Third, she "exhibit[ed] ongoing behavior [that] would make it impossible to return [the children] to [her] care and custody because [she] has a diagnosable condition, drug addiction, unlikely to change within a reasonable time, which ... makes [her] unable to assume minimally[ ] acceptable care of [the children.]" See id. § 93-15-103(3)(e)(i). Fourth, she "failed to eliminate ongoing behavior, identified to [her] by [DHS]," despite DHS's diligent efforts to assist her. See id. § 93-15-103(3)(e)(ii). Fifth, there had been substantial erosion of CSH's relationship with the children, caused in part by her "prolonged and unreasonable absence" and "unreasonable failure to visit or communicate[.]" See id. § 93-15-103(3)(f). Sixth, the youth court, "a court of competent jurisdiction[,]" had previously determined that reunification with CSH was not in the children's best interest. See id. § 93-15-103(3)(h).

¶ 20. Aggrieved by the termination of her parental rights, CSH appeals.

STANDARD OF REVIEW

¶ 21. The county court's "findings of fact concerning the termination of parental rights are viewed under the manifest error/substantial credible evidence standard of review." W.A.S. v. A.L.G. , 949 So.2d 31, 34 (¶ 7) (Miss. 2007). Upon review, this Court must determine whether credible proof supports the county court's factual findings by clear and convincing evidence. In re K.D.G. II , 68 So.3d 748, 751 (¶ 12) (Miss. Ct. App. 2011). However, "questions of law such as statutory construction are subject to de novo review, and if a [court] misapprehends the controlling rules of law or acts pursuant to a substantially erroneous view of the law, reversal is proper." Chism v. Bright , 152 So.3d 318, 322 (¶ 12) (Miss. 2014).

DISCUSSION

I. Statutory Prerequisites for Parental-Rights Termination

¶ 22. CSH contends the county court failed to apply the statutory prerequisites for parental-rights termination. Alternatively, she asserts that, even if the county court properly applied the prerequisites, it erred by finding the prerequisites were met by clear and convincing evidence. We address these two arguments together.

¶ 23. During the time relevant to this appeal, Mississippi Code Annotated sections 93-15-101 to -111 (Rev. 2013) governed termination-of-parental-rights proceedings. Section 93-15-103(1) established prerequisites for a court to consider before invoking any specific statutory grounds for termination. Chism , 152 So.3d at 322-23 (¶ 15). Section 93-15-103(1) provided:

When a 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 because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child's bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.

¶ 24. In recently discussing section 93-15-103(1), this Court adopted a "two[-]alternatives interpretation" of the statute. In re B.A.H. , 225 So.3d 1220, 1239-40 (¶ 63) (Miss. Ct. App. 2016). In so doing, we stated:

[W]e should interpret [ section 93-15-103(1) ] as directing the youth court to consider whether there are grounds for termination of parental rights if either [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 because returning to the home would be damaging to the child or [2a] the parent is unable or unwilling to care for the child, [2b] relatives are not appropriate or are unavailable, and [2c] adoption is in the best interest of the child."

Id. at 1238 (¶ 59) (quoting Miss. Code Ann. § 93-15-103(1) ).

¶ 25. Upon review, we find the record contains substantial credible evidence from which a rational trier of fact could conclude that, after Leo and Quinn's removal from CSH, DHS could not achieve reunification within a reasonable amount of time because doing so would be damaging to the children. Id. DHS took custody of ten-month-old Leo in May 2008 after CSH left him for several months with a non-relative who could no longer care for him. CSH admitted that she was using drugs at the time she abandoned Leo. The following month, in June 2008, DHS obtained custody of two-day-old Quinn after he tested positive for cocaine. The youth court found CSH had "neglected and/or abandoned" Leo and that she had neglected Quinn. In November 2008, after Leo and Quinn had been in DHS's custody for about six and five months, respectively, CSH began to schedule visits with her children.

¶ 26. The next year, in June 2009, the youth court reviewed Leo's case. The evidence showed that CSH continued to struggle with drug use, and by its August 5, 2009 order, the youth court found that CSH had failed to complete the terms of her service agreement. Despite these findings, the youth court granted CSH an additional six months to make progress on her service-agreement requirements.

¶ 27. Also on August 5, 2009, the youth court reviewed and entered an order in Quinn's case. As with Leo's case, the youth court found that CSH had failed to complete her service-agreement requirements to regain custody of Quinn. However, unlike with Leo's case, the youth court determined that termination of CSH's parental rights served Quinn's best interest.

¶ 28. Following an annual review of Leo's case in December 2009, the youth court also ordered the termination of CSH's parental rights as to him. In its subsequent related order, the youth court found that CSH's failure to complete her service-agreement requirements, coupled with Leo's age and amount of time in foster care, warranted the termination of CSH's parental rights. In May 2010, almost two years after losing custody of her children and entering into her service agreement with DHS, CSH completed a drug-rehabilitation program.

¶ 29. We find that CSH's continued drug use between May 2008 (when Leo entered DHS custody) and January 2010 (when CSH entered the drug-rehabilitation program) presented an ongoing danger to her children that prevented DHS from returning them to her within a reasonable period of time. See Miss. Code Ann. § 93-15-103(1) ; In re B.A.H. , 225 So.3d at 1241 (¶ 65). We further acknowledge that "state law requires DHS to file a [termination-of-parental-rights] petition for any neglected child who has been in foster care for fifteen of the prior twenty-two months." In re B.A.H. , 225 So.3d at 1241 (¶ 65) (citing Miss. Code Ann. § 43-15-13(3) (Rev. 2015) ). Although Quinn had only been in DHS custody for about a year when the youth court ordered the termination of CSH's parental rights as to him, Leo had been in DHS custody for more than fifteen consecutive months by the time of the youth court's order (effective December 2, 2009) terminating CSH's parental rights as to him.

¶ 30. Upon review, we find the record shows the county court properly considered and applied the statutory prerequisites before determining whether to terminate CSH's parental rights. We likewise find sufficient record support for the county court's finding that clear and convincing evidence satisfied the statutory prerequisites for parental-rights termination. As a result, we find these assignments of error lack merit.

II. Statutory Grounds for Parental-Rights Termination

¶ 31. CSH next challenges the county court's finding that clear and convincing evidence satisfied the statutory grounds for parental-rights termination. CSH contends the county court's termination of her parental rights was clearly erroneous in light of relevant Mississippi caselaw.

¶ 32. As previously discussed, the county court found by clear and convincing evidence that CSH's ongoing drug use prevented reunification with Leo and Quinn within a reasonable period of time after DHS removed them from her custody. See Miss. Code Ann. § 93-15-103(1). In continuing its analysis, the county court next found that clear and convincing evidence supported six different statutory grounds for the termination of CSH's parental rights.

¶ 33. Relevant to the statutory grounds upon which the county court based its decision, section 93-15-103(3) provides:

Grounds for termination of parental rights shall be based on one or more of the following factors:
....
(d) When the child has been in the care and custody of a licensed child[-]caring agency or [DHS] for at least one (1) year, that agency or the department has made diligent efforts to develop and implement a plan for return of the child to its parents, and:
(i) The parent has failed to exercise reasonable available visitation with the child; or
(ii) The parent, having agreed to a plan to effect placement of the child with the parent, fails to implement the plan so that the child[-]caring agency is unable to return the child to said parent; or
(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent's care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child; or
(ii) Because the parent fails to eliminate behavior, identified by the child[-]caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child[ ]caring agency to assist the parent; or
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent's serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment; or
....
(h) The child has been adjudicated to have been abused or neglected and custody has been transferred from the child's parent(s) for placement pursuant to Section 43-15-13, and a court of competent jurisdiction has determined that reunification shall not be in the child's best interest.

¶ 34. In another recent appeal involving the termination of parental rights, this Court explained:

While section 93-15-103(1) provides that the grounds for [termination of parental rights] may be considered in combination, only one statutory ground is necessary to justify termination. Once the clear and convincing burden has been met, the best interest of the child is to be considered. Parental rights should be terminated only if the court determines that termination is in the child's best interest.

In re B.A.H. , 225 So.3d at 1241 (¶ 64) (internal citations and quotation marks omitted).

¶ 35. Upon review, we find the record contains credible evidence to support the county court's finding that at least one statutory ground existed for the termination of CSH's parental rights. Williams testified that DHS took custody of Leo after learning CSH had left him with a non-relative who could no longer care for him. No one knew CSH's whereabouts at the time, and CSH herself testified that she had suffered a relapse when she abandoned Leo. Testimony reflected that DHS soon took Quinn into custody as well because he was born with cocaine in his system. To be reunified with her sons, CSH signed a service agreement. With the aim of helping CSH become drug free, the service agreement required her to submit to random drug tests and to enroll in a drug-treatment program. However, for almost a year and a half after signing her June 2008 service agreement, CSH suffered relapses. According to CSH's own testimony, she did not truly become drug free until she entered a drug-treatment program in January 2010, which she subsequently completed in May 2010.

¶ 36. Based on these facts, we find credible evidence supports the county court's findings as to the following three statutory grounds: First, CSH failed to comply with her service agreement, which prevented the children from being returned to her after more than a year in DHS custody. See Miss. Code Ann. § 93-15-103(3)(d)(ii). Second, CSH's ongoing drug use prevented reunification "[b]ecause [she] ha[d] a diagnosable condition unlikely to change within a reasonable time ..., which [made her] unable to assume minimally, acceptable care of the child[ren.]" See id. § 93-15-103(3)(e)(i). Third, CSH's failure to eliminate the identified harmful behavior prevented reunification, despite DHS's diligent efforts to assist her. See id. § 93-15-103(3)(e)(ii).

¶ 37. We further find sufficient credible evidence in the record that, due largely to CSH's own actions, her mother-child relationship with Leo and Quinn substantially eroded. See id. § 93-15-103(3)(f). "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." In re K.D.G. II , 68 So.3d 748, 752-53 (¶ 22) (Miss. Ct. App. 2011) (citation omitted). At the time DHS initiated termination proceedings, Leo and Quinn had been in foster care for about three years. Following the boys' entry into DHS custody, CSH's own actions (her ongoing drug use) prevented her from regaining custody of the boys within a reasonable amount of time. Over time, these circumstances eroded the mother-child relationship. In fact, by the time CSH began to schedule and attend regular visits with the children, the undisputed testimony showed that Leo and Quinn had bonded with their foster family and considered their foster parents to be their real parents. In contrast, multiple witnesses testified that no similar attachment existed between CSH and the boys. CSH herself even admitted that her relationship with Leo and Quinn had substantially eroded and that the children viewed the Smiths as their real parents. Accordingly, we find credible evidence supports the county court's finding on this issue.

¶ 38. Finally, the youth court, a court of competent jurisdiction, found that both children were neglected and/or abused and that reunification did not serve their best interests. See Miss. Code Ann. § 93-15-103(3)(h). As discussed, DHS took custody of Leo because CSH abandoned him with a friend, and the agency then obtained custody of Quinn after he was born with cocaine in his system. Multiple witnesses testified that Leo and Quinn were well adjusted in their foster placement, had formed strong attachments to their foster family, and considered their foster parents to be their real parents. Multiple witnesses also testified that reunification would not serve Leo's and Quinn's best interest because removing them from the care of their foster parents, who had raised the boys for most of their lives, would severely and negatively impact them. As a result, we find that sufficient credible proof established this statutory ground by clear and convincing evidence. We further find sufficient proof supported the county court's finding that termination of CSH's parental rights served Leo's and Quinn's best interest.

CONCLUSION

¶ 39. We acknowledge that much of what the dissent raises in its arguments is factually correct. The unfortunate four-year delay in this case was largely attributable to the State's actions and has created prolonged uncertainty and unnecessary burden for CSH, the Smiths, and the minor children as they have awaited resolution. While we struggle with the outcome of this case, we find our caselaw and statutory law require the result reached. Even with the extended deadline granted by the county court, CSH failed to make progress on the terms of her service agreement within the time frame provided by the statute. As a result, we find substantial credible proof supported the county court's determination that clear and convincing evidence established all the statutory prerequisites and requirements for termination of CSH's parental rights and that the termination of her parental rights served Leo's and Quinn's best interests. We therefore affirm the county court's judgment.

¶ 40. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.

WESTBROOKS, J., DISSENTING:

¶ 41. I respectfully dissent from the majority. At the hearing on March 9, 2015, in evaluating whether the statutory prerequisites for parental-rights termination were met, the county court and majority looked only at the behaviors of CSH during May 2008 through December 2009. After entering an inpatient drug-rehabilitation program in January 2010, CSH made substantial progress toward completing her service-agreement requirements. Additionally, CSH experienced many continuances for a hearing, most due to no fault or request of her own. I believe those actions should have been taken into consideration at the 2015 hearing as well.

¶ 42. The United States Supreme Court, as well as the Supreme Court of Mississippi, has held a long standing tradition of protecting parental rights as fundamental rights. The United States Supreme Court held that "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer , 455 U.S. 745, 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Stating even further that, "[a] parental rights termination proceeding interferes with that fundamental liberty interest." Id. The Mississippi Supreme Court stated in similar fashion that "[b]ecause parental rights are so important, we sharply limit the circumstances under which can be terminated by the government." Gunter v. Gray , 876 So.2d 315, 317 (¶ 3) (Miss. 2004).

¶ 43. The majority holds that the county court was proper in finding three statutory grounds for the termination supported by clear and convincing evidence. I disagree.

¶ 44. First, the majority states that CSH failed to comply with her service agreement, which prevented the children from being returned to her after more than a year in DHS custody, according to Mississippi Code Annotated section 93-15-103(3)(d)(ii) (Rev. 2013). While that is correct, CSH did complete her service agreement before the hearing. The children's social worker, Barbara Williams, testified in accordance with that fact, agreeing that from 2010 going forward CSH did everything to satisfy her agreement to get her children back, including going to treatment, finding housing, and having the financial means to provide for the children.

¶ 45. Second, the majority states that CSH's ongoing drug use prevented reunification. See id. § 93-15-103(3)(e)(i). However, CSH completed her treatment at Born Free in Jackson, Mississippi in May 2010 and passed each subsequent drug test between then and the hearing, negating that her drug use was ongoing after treatment.

¶ 46. Third, the majority states that CSH's failure to eliminate the identified harmful behavior prevented reunification. See id. § 93-15-103(3)(e)(ii). However, as stated, CSH eliminated her drug use and made substantial strides toward completing the service-agreement before the hearing to ensure reunification.

¶ 47. Additionally, the majority states that the mother-child relationship with Leo and Quinn had substantially eroded. See id. § 93-15-103(3)(f). I agree. Prior to 2015, the county court and DHS only provided CSH one hour a month with her children, totaling twelve hours a year. Twelve hours a year is hardly enough time to build strong bonds, and erosion of the relationship would be a natural result. However, CSH should not have been penalized, as the court and DHS aided in the erosion by not providing her more visitation. Scott Colom, the guardian ad litem in the case, testified that "... of course you can have children regain bonds with parents but this is a unique situation in that they've already got bonds with parents and you expect them to be able to create new bonds with different parents, it's going to be hard, especially considering the circumstances." Although difficult with additional time, the mother-child relationships among CSH, Leo, and Quinn could be mended.

¶ 48. Furthermore, to address the other statutory grounds found by the county court: CSH showed up for every visitation available to her. See id. § 93-15-103(3)(d)(i). Williams testified that CSH always took advantage of her visitations, even rescheduling when needed. Lastly, the county court should have re-evaluated CSH's behaviors after 2010 and the limitations placed on her by the court in her attempts to reunify with her children. See id. § 93-15-103(3)(h).

¶ 49. I find that when comprehensively looking at the entire period of time the children have been in DHS custody, the statutory grounds set forth by section 93-15-103(3) were not met. Therefore, CHS's parental rights should not have been terminated.

¶ 50. I respectfully dissent.

IRVING, P.J., JOINS THIS OPINION.

      Although the county court also terminated the parental rights of the children's unknown putative father, that portion of the judgment is not before this Court for review. To protect the privacy and anonymity of the minor children involved in this case, we refer to the Appellant by her initials, and we use fictitious names for the children and their foster parents.

      Although the county court cited the 2002 Supplement to Mississippi Code Annotated section 93-15-103 in its judgment, this Court cites to and applies the 2013 version of the statute since it was in effect at the time CSH's parental rights were terminated.

      After CSH filed her appeal, the Mississippi Legislature amended the statute so that the prerequisites are no longer applicable. See Miss. Code Ann. §§ 93-15-101 to -133 (Supp. 2016). However, the amended statute does not apply retroactively. Miss. Laws ch. 431, § 24 (H.B. 1240). We therefore apply the version of the statute in effect at the time CSH's parental rights were terminated. See Mladinich v. Kohn , 186 So.2d 481, 483 (Miss. 1966) ("A statute will not be given retroactive effect unless it is manifest from the language that the legislature intended it to so operate.").

      Although the youth court waited until September 23, 2010, to enter the order terminating CSH's parental rights as to Leo, the youth court made the order effective from the date of the December 2, 2009 hearing.

      Because we find that at least one other statutory ground exists for the termination of CSH's parental rights, we need not address the county court's finding that CSH failed to exercise reasonable available visitation with Leo and Quinn under section 93-15-103(3)(d)(i).


source: Caselaw Access Project

author: WESTBROOKS, J., FOR THE COURT:

license: Public Domain

text:
    Jane DOE, Appellant v. HOLMES COUNTY SCHOOL DISTRICT, Appellee
    NO. 2016-CA-01308-COA
    Court of Appeals of Mississippi.
    May 8, 2018
    ATTORNEY FOR APPELLANT: JOHN CURTIS HALL II
    ATTORNEYS FOR APPELLEE: SANDRA DENISE BUCHANAN, JACKSON, KYE CNEE' HANDY
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. This action derives from a civil suit filed by minor Jane Doe, individually, against the Holmes County School District (HCSD) under the Mississippi Tort Claims Act (MTCA) in the Holmes County Circuit Court. HCSD filed a motion to dismiss alleging that the statute of limitations had run on Jane's claim and that she lacked standing to file the complaint. In turn, Jane filed a motion for substitution of parties. The circuit court granted HCSD's motion to dismiss and denied Jane's motion for substitution. After reviewing the record, we reverse the judgment of the circuit court dismissing Jane's complaint and denying her motion for substitution. We remand this matter for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2013, Jane was a sixteen-year-old high-school student at J.J. McClain High School in Lexington, Mississippi. On April 4, 2013, George Lomax, the assistant principal, summoned Jane to the band hall and sexually assaulted her.

¶ 3. Jane reported the assault to her cousin, who was also a student at the high school. Jane maintains that she and her cousin reported the sexual assault to a school employee; however, no further action was taken. As a result, Jane notified her parents of the assault after arriving home from school, and her parents called the police. Lomax was subsequently arrested and convicted of assaulting Jane.

¶ 4. On March 26, 2014, Jane, through her parents as her next friends and natural guardians, served a notice of claim to HCSD. On April 23, 2014, HCSD sent a formal denial letter. However, Jane's parents never filed a complaint following their receipt of the denial letter. In October 2015, a second notice of claim was sent, and on January 29, 2016, Jane filed a complaint against HCSD on her own behalf. At the time, Jane was nineteen years old.

¶ 5. HCSD filed a motion to dismiss, asserting that the statute of limitations had run on Jane's claim because of its 2014 denial letter. In response, Jane filed a motion to substitute her mother as an interested party under Mississippi Rule of Civil Procedure 17. The circuit court granted HCSD's motion to dismiss and denied Jane's motion for substitution. Jane appeals.

STANDARD OF REVIEW

¶ 6. "When considering a motion to dismiss, this Court's standard of review is de novo." Scaggs v. GPCH-GP Inc ., 931 So.2d 1274, 1275 (¶ 6) (Miss. 2006). "[T]he allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Id.

DISCUSSION

I. Jane's complaint was not untimely.

¶ 7. HCSD argues that Jane's complaint was properly dismissed under Mississippi Code Annotated section 11-46-11(3)(a)-(b) (Rev. 2012), which provides:

(a) All actions brought under this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful[,] or otherwise actionable conduct on which the liability phase of the action is based, and not after, except that filing a notice of claim within the required one-year period will toll the statute of limitations for ninety-five (95) days from the date the chief executive officer of the state entity or the chief executive officer or other statutorily designated official of a political subdivision receives the notice of claim.
(b) No action whatsoever may be maintained by the claimant until the claimant receives a notice of denial of claim or the tolling period expires, whichever comes first, after which the claimant has an additional ninety (90) days to file suit; failure to file within the time allowed is an absolute bar to any further proceedings under this chapter.

¶ 8. However, Jane first asserts that the statute of limitations has not run because she is protected under the minors savings clause found under Mississippi Code Annotated section 11-46-11(4). This section provides:

[I]f any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

¶ 9. We agree with HCSD that this is a matter of statutory interpretation. "Statutory interpretation is a matter of law which we review in its entirety." Univ. of Miss. Med. Ctr. v. Robinson , 876 So.2d 337, 339 (¶ 10) (Miss. 2004). Moreover, "[o]ur primary objective when construing statutes is to adopt that interpretation which will meet the true meaning of the Legislature." Id. at 340 (¶ 10). The Mississippi Supreme Court has held that "statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue." Tipton v. State , 150 So.3d 82, 84 (¶ 7) (Miss. 2014). Further, "if a statute is ambiguous, the [reviewing] Court must carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case." Id. (quotation marks omitted).

¶ 10. Accordingly, we find that the minors savings clause found under section 11-49-11(4) is the controlling provision in Jane's claim because the purpose of the statute is to "protect the legal rights of those who are unable to assert their own rights due to disability." Hays v. Lafayette Cty. Sch. Dist. , 759 So.2d 1144, 1147 (¶ 16) (Miss. 1999). As a result, Jane's claim is tolled under section 11-46-11(4) until she reaches the age of majority or an interested party actually files a complaint on her behalf.

¶ 11. Jane further argues that the circuit court committed reversible error in applying the holdings of Stockstill v. State , 854 So.2d 1017 (Miss. 2003) and Hays v. Lafayette County School District , 759 So.2d 1144 (Miss. 1999) to her case. We agree. The claims in both of those cases accrued prior to the enactment of the MTCA's minors savings clause. In Hays and Stockstill , the Supreme Court simply held and then reaffirmed that the general minors savings clause, Mississippi Code Annotated section 15-1-59 (Rev. 2012), does not apply to claims brought under the MTCA. See Hays , 759 So.2d at 1148 (¶ 19) ; Stockstill , 854 So.2d at 1021-23 (¶¶ 10-13). The Legislature responded to the Supreme Court's rulings by adding a minors savings clause for MTCA claims. See Robinson , 876 So.2d at 339 (¶¶ 7-8). Therefore, Jane is correct that Hays and Stockstill have no bearing on her case.

¶ 12. The MTCA's one-year limitations period is tolled for a period of time once a designated official of the State or political subdivision receives a timely notice of claim from a tort-claimant; the Supreme Court has explained that once that period of time ends, "the claimant has an additional 90 days granted by the statute in which to file suit." Page v. Univ. of S. Miss. , 878 So.2d 1003, 1006-07 (¶ 12) (Miss. 2004) ; see also Miss. Code Ann. § 11-46-11(3)(a)-(b). However, the mere filing and reception of a notice of claim do not trigger the running of a statute of limitations when, as in this case, the statute of limitations is tolled by the minors savings clause.

¶ 13. The Supreme Court has, however, previously addressed the issue of pretrial notice and the minors savings clause in wrongful-death actions. In Pioneer Community Hospital of Newton v. Roberts , 214 So.3d 259, 261 (¶ 3) (Miss. 2017), the Supreme Court held that "only when someone who is qualified to bring a wrongful-death suit actually files a wrongful-death suit on the minor beneficiaries' behalf will the minors savings clause not apply, because, once the suit is filed, the running of the statute of limitations is immaterial." That case "involve[d the] timeliness of a wrongful-death action and the interplay between the wrongful-death statute and the minors savings clause." Id. at 260 (¶ 1) (footnote omitted).

¶ 14. Here, the Supreme Court's treatment of the minors savings clause in Pioneer is instructive in this case. Accordingly, we find that the trial court erred in concluding that the presuit notice filed by Jane's parents triggered the statute of limitations. Jane's parents never filed a complaint on her behalf. Further, this Court and the Supreme Court have held that the "statute of limitations does not begin to run until the person attains his twenty-first birthday." Reeg v. Keel , 174 So.3d 309, 313 (¶ 11) (Miss. Ct. App. 2015) (collecting cases).

¶ 15. We also note that under Mississippi law, the statute of limitations does not run against a minor simply because the minor's parents could have filed a lawsuit sooner. That is, "a child is not held responsible for [her] parent's failure to file a lawsuit on the child's behalf." Weaver v. State Farm Fire & Cas. Co. , 2015 WL 197617, at *4 (S.D. Miss. Jan. 14, 2015) (Reeves, J.) (collecting cases). Otherwise:

[T]he minors savings clause would be rendered meaningless: the statute of limitations would run against every child immediately, simply because their parent was also their legal guardian. As a result, every child would be held responsible for their parent's failure. That cannot be the case in light of numerous Mississippi Supreme Court cases declining to hold children so responsible.

Id. at *5 (discussing the general minors savings clause). Therefore, we reverse the judgment of the circuit court.

II. Jane's mother can be substituted as a party.

¶ 16. Because Jane was still incapacitated under the law during the time she filed a claim against HCSD, she should have been allowed to substitute her mother as a real party in interest. Mississippi Rule of Civil Procedure 17 states in pertinent part:

(a) Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his representative capacity without joining with him the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
....
(c) Whenever a party to an action is an infant or is under legal disability and has a representative duly appointed under the laws of the State of Mississippi or the laws of a foreign state or country, the representative may sue or defend on behalf of such party. A party defendant who is an infant or is under legal disability and is not so represented may be represented by a guardian ad litem appointed by the court when the court considers such appointment necessary for the protection of the interest of such defendant.

¶ 17. Here, Jane's parents did not file suit against HCSD on Jane's behalf. Accordingly, we find that Jane's mother can be substituted as an interested party and file a complaint on Jane's behalf until Jane is twenty-one, or Jane can individually file after turning twenty-one within the one-year statute of limitation prescribed under the MTCA. See Lewis v. Ascension Parish Sch. Bd. , 662 F.3d 343, 347 (5th Cir. 2011) (holding that a minor lacks "capacity to sue," but "[u]nlike standing, the lack of which cannot be waived or cured, capacity to sue can be cured" on remand and is not a jurisdictional issue; also holding that the minor "indisputably ha[d] standing as the party affected by the alleged wrongful" conduct). Therefore, we remand to provide Jane's mother with the opportunity to be substituted as an interested party or for Jane to file on her own behalf at the appropriate time.

¶ 18. REVERSED AND REMANDED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      Like the circuit court, we substitute the alias "Jane Doe" to protect the minor's identity.

      The high school is now called Holmes County Central High School.


author: CARLTON, J., FOR THE COURT:

text:
    Kendrick Daton THOMAS a/k/a Kendrick Thomas, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00244-COA
    Court of Appeals of Mississippi.
    May 8, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Kendrick Daton Thomas appeals his conviction and sentence for one count of possession of a Schedule II controlled substance (cocaine) and one count of possession of a Schedule I controlled substance (marijuana). Thomas's appellate counsel filed a brief pursuant to the Mississippi Supreme Court's holding in Lindsey v. State , 939 So.2d 743 (Miss. 2005), stating that the record contained no appealable issues. Thomas received additional time to file a pro se brief; however, he did not do so. For the reasons stated below, we affirm the trial court's judgment.

FACTS

¶ 2. Thomas, Shaynell Lee, and Lee's newborn baby lived together in an apartment in Roxie, Mississippi. On the evening of March 13, 2016, Officer Otis Dyer of the Franklin County Sheriff's Department responded to a call regarding a domestic disturbance at Thomas and Lee's apartment. Officer Dyer arrived at the home. Lee opened the door, and Officer Dyer entered the apartment. Officer Dyer testified that when he entered the apartment, he could smell a strong odor of marijuana. Officer Dyer observed Thomas sitting on a loveseat. Officer Dyer also testified that he saw "a pile" of plastic bags containing a leafy green substance sitting "in plain view ... [on] a coffee table" between the loveseat and a couch. When Officer Dyer picked up the bags, he noticed that the bags also contained white substances. According to Officer Dyer, he asked Thomas and Lee about the contents of the bags, but they both denied ownership. Officer Dyer then arrested Thomas and Lee for possession of a controlled substance.

¶ 3. A Franklin County grand jury indicted both Thomas and Lee on one count of possession of a Schedule II controlled substance (cocaine), and one count of possession of a Schedule I controlled substance (marijuana). At the start of trial, the trial court severed the cases, and the State proceeded with Thomas's case alone.

¶ 4. At trial, Officer Dyer testified that after arresting Thomas and Lee, he learned that both Thomas and Lee were leaseholders for the apartment. Officer Dyer testified that he asked Thomas and Lee if they had any recent visitors at the apartment, and they responded that they had not. Dyer also commented that it did not appear that there had been any party or recent gathering in the apartment when he arrived.

¶ 5. Thomas testified in his own defense. According to Thomas, he had been living in the apartment with Lee for about three months before this incident. On the night in question, Thomas testified that he spent the evening playing cards, cooking out, and drinking with Lee, two of Thomas's friends, and also two other men who "came along" with Thomas's friends. Thomas testified that he did not see anyone with drugs in the house that evening.

¶ 6. Thomas stated that as they were preparing food, he and Lee got into an argument, and Lee called the police. Thomas testified that when the four guests realized that the police were on their way, they "ran and scattered." When Officer Dyer questioned him about the plastic bags, Thomas testified that "all I could think about it had to be one of my buddies that was there before me that ran out and left it[.]" Thomas maintained that the bags did not belong to him and insisted that "if [they were] there and I knew the police were coming, I wouldn't have left [them] there."

¶ 7. Thomas testified that he attempted to contact the four men after the incident, but he had not heard back from any of them. Thomas stated that the marijuana did not belong to him or Lee.

¶ 8. The trial court also heard testimony from Adrian Hall, a forensic scientist at the Mississippi Forensic Laboratory who performed tests on substances in the bags removed from Thomas and Lee's apartment. Hall identified the substances as marijuana and cocaine.

¶ 9. After a trial held on February 1, 2017, the jury returned a verdict of guilty on both counts. On Count I, the trial court sentenced Thomas to serve four years in the custody of the Mississippi Department of Corrections (MDOC), with three years suspended and three years on post-release supervision. The trial court also ordered Thomas to pay a fine of $3,000 and all court costs and fees, including a $200 prosecution fee. On Count II, the trial court ordered Thomas to pay a fine of $250 and all court costs and fees, including a $200 prosecution fee.

¶ 10. Thomas filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, asserting the following claims of error: (1) the trial court erred by failing to grant Thomas's motion for a directed verdict; (2) the trial court erred by failing to grant Thomas's renewed motion for a directed verdict; (3) the jury's verdict was against the overwhelming weight of the evidence and evinced bias and prejudice against Thomas; and (4) the evidence was insufficient to support the jury's verdict.

¶ 11. After hearing arguments on Thomas's motion, the trial court entered an order denying relief. This appeal followed.

DISCUSSION

¶ 12. In Lindsey , the supreme court set forth the following procedure for appellate counsel to follow after determining that the record contains no appealable issues:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1) -[ (5), (8) ]; see also [Smith v. ] Robbins , 528 U.S. [259], 280-81, 120 S.Ct. 746 [145 L.Ed.2d 756 (2000) ] (stating that "[c]ounsel's summary of the case's procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.").
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing. See Robbins , 528 U.S. at 280-81, 120 S.Ct. 746 ; Turner [v. State ], 818 So. 2d [1186, 1189 (Miss. 2001) ].
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief. Turner , 818 So.2d at 1189 ; cf. [People v. ] Wende , [25 Cal. 3d 436, 158 Cal.Rptr. 839], 600 P.2d [1071, 1074 (Cal. 1979) ].
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal. Robbins , 528 U.S. at 280, 120 S.Ct. 746 (citing Wende , 158 Cal.Rptr. 839, 600 P.2d at 1074 ).
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey, 939 So.2d at 748 (footnotes omitted); see also Allred v. State , 130 So.3d 504, 506 (¶ 6) (Miss. 2014).

¶ 13. Upon our review, we find that Thomas's attorney complied with the requirements outlined in Lindsey . Counsel filed a brief stating she "diligently searched the procedural and factual history of this criminal action and scoured the record," finding no arguable issues for appeal. Counsel specifically asserts she considered and reviewed: (a) the reason for Thomas's arrest and the circumstances surrounding the arrest; (b) any possible violation of Thomas's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; (h) possible misrepresentation of the law in sentencing; (i) the indictment and all pleadings in the record; (j) any possible ineffective-assistance-of-counsel issues; and any other possible reviewable issues. Counsel also stated, and this Court confirmed, that she mailed a copy of her brief to Thomas, who is currently incarcerated in the Central Mississippi Correctional Facility, notifying him that she found no arguable issues and that he had a right to file a pro se brief. Counsel requested that this Court grant Thomas an additional forty days of time in which to file his pro se brief, if he so desired. This Court entered an order allowing Thomas forty days to file but did not receive a pro se brief from Thomas.

¶ 14. Furthermore, after reviewing the record, we find that sufficient evidence exists to support Thomas's convictions for possession of cocaine and possession of marijuana. We also find no arguable issues for our review. Accordingly, we affirm the trial court's judgment.

¶ 15. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


author: GRIFFIS, P.J., FOR THE COURT:

text:
    In the MATTER OF the GUARDIANSHIP OF C.B.F., a Minor:
    Paul Fountain, Appellant v. HOLLEE FOUNTAIN REON, Clayton Keeton, and Armonda Fountain, Appellees
    NO. 2017-CA-00115-COA
    Court of Appeals of Mississippi.
    May 8, 2018
    ATTORNEY FOR APPELLANT: LESLIE C. GATES, Meridian
    ATTORNEY FOR APPELLEES: GEORGE H. SPINKS
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Paul Fountain, the maternal grandfather of C.B.F., hereinafter referred to as Carter, appeals the chancellor's application of the natural-parent presumption and award of custody to his daughter, Hollee Fountain Reon, Carter's mother. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hollee, born in 1998, is the daughter of Paul and Armonda Fountain. Hollee and Clayton Keeton are the natural parents of Carter, a male child born in 2013. Shortly after Carter's birth, Hollee was admitted to a mental-health center for approximately two weeks to receive inpatient treatment for post-partum depression.

¶ 3. Following the birth of Carter, Hollee and Carter lived with Armonda in Meridian. Hollee's boyfriend, Travis, would occasionally stay with her at Armonda's residence. Paul would visit with Carter on the weekends.

¶ 4. On June 12, 2013, Armonda filed a "petition for appointment of temporary guardians for minors" in the Chancery Court of Lauderdale County. The petition, which Hollee joined, sought the appointment of Armonda "as temporary guardian of [Carter] until such time as the mother of said minor, [Hollee], c[ould] demonstrate to th[e] [c]ourt that she [wa]s ready and capable of caring for said minor."

¶ 5. In September 2013, Hollee, Carter, and Travis left Armonda's residence after an argument over money. They moved into Paul's residence in Collinsville. Approximately two weeks later, Hollee, Carter, and Travis went to Paul's mother's house in Picayune, where they stayed for three weeks. According to Hollee, upon her return to Paul's residence, Paul informed her that she could "take [Carter] and go to Vicksburg or stay [t]here and go to East Mississippi State Hospital." That night, Paul took Hollee and Travis to Travis's parents' house in Vicksburg. However, when Paul failed to bring Carter to her, Hollee returned to Meridian. Upon Hollee's return, Paul informed her that she could not have Carter; that he had custody of him.

¶ 6. Unbeknownst to Hollee or Armonda, Paul had initiated custody proceedings in the Lauderdale County Youth Court. On October 1, 2013, a shelter hearing was held "based upon a[n] affidavit alleging that [Armonda] ha[d] kicked [Hollee] out of her household and [Hollee] has a 6[-]month[-old] infant to care for as well." Following the shelter hearing, a temporary placement judgment was entered, which awarded temporary physical and legal custody of Hollee to Paul.

¶ 7. A second shelter hearing was held on October 22, 2013, wherein Paul claimed that Hollee had run away from his home with her boyfriend, leaving Carter with him. Following the shelter hearing, the youth court temporarily placed physical and legal custody of Carter with Paul.

¶ 8. On October 11, 2013, the chancery court, also unaware of the youth court proceedings, granted Armonda's petition for temporary guardianship and appointed Armonda as temporary guardian of and over Carter. The chancellor noted that Clayton had been notified of and approved the appointment. The chancellor further noted that the temporary guardianship covered physical custody only. The chancellor ordered yearly status reviews of the guardianship.

¶ 9. On November 18, 2013, Hollee's attorney wrote a letter to the youth court seeking clarification of the proceedings. Thereafter, on December 19, 2013, the youth court entered a judgment transferring jurisdiction to the chancery court and acknowledged that it "was not informed of any pending [g]uardianship ...." As a result of the transfer, an adjudication hearing was never heard in the youth court.

¶ 10. Following the transfer of jurisdiction to chancery court, Carter remained in Paul's custody. Paul filed a complaint for relief from judgment pursuant to Mississippi Rule of Civil Procedure 60(b), as well as a counterclaim for guardianship or, in the alternative, a petition for change of guardian and/or for modification of guardianship.

¶ 11. Hollee and Armonda filed a motion for visitation with Carter. Following a hearing, the chancellor granted temporary visitation between Hollee and Carter to be supervised by Armonda. Hollee became emancipated on February 14, 2015, at the age of sixteen, when she married Adrien Reon.

¶ 12. The chancellor appointed a guardian ad litem (GAL). In her initial report, filed May 27, 2015, the GAL opined that Hollee forfeited the natural-parent presumption and voluntarily relinquished custody of Carter to Armonda upon her joinder in the petition for appointment of temporary guardianship. The GAL conducted an Albright analysis and found that the factors favored Paul. The GAL concluded that Paul should be granted custody of Carter.

¶ 13. The GAL filed a first supplemental report on December 1, 2015, and found that Clayton willfully deserted Carter through his inaction and avoidance of duty. Additionally, the GAL noted that she had spoken with Erica Flake, a psychiatric nurse practitioner, who began seeing Hollee in November 2014. According to Ms. Flake, Hollee had been diagnosed with bipolar disorder and attention deficit hyperactivity disorder and was on daily medication. She and Hollee would meet at least once a month, but often twice a month. At Ms. Flake's recommendation, Hollee also sought therapy with Beth Wilkerson to further assist her in developing coping skills. Ms. Flake reported that Hollee was "stressed about [Carter] not being in her custody." Ms. Flake advised that she had seen improvements in Hollee's behavior.

¶ 14. On December 23, 2015, Armonda, Hollee, and Clayton filed their answer to Paul's complaint and counterclaim for guardianship and also filed a counterclaim for custody and guardianship. Specifically, Armonda, Hollee, and Clayton requested that Hollee be awarded custody of Carter or, alternatively, that Armonda be appointed temporary guardianship until such time as Hollee could demonstrate that she was ready and capable of caring for the minor child. Armonda, Hollee, and Clayton also filed an "amended petition for appointment of temporary guardian for minors."

¶ 15. On April 11, 2016, the GAL filed a second supplemental report and noted that Hollee and Adrien had purchased the house next door to Armonda and moved into the home in late December 2015. The GAL toured the home and found it needed improvements. The GAL further noted Hollee's continued treatment with Ms. Flake and Ms. Wilkerson "on a regular basis." Importantly, the GAL opined that although Hollee "posed a probable serious harm or detriment to [Carter] at the time that this suit was brought by ... Paul[,] ... Hollee has matured as a person, thus making her a more suitable caregiver, and she has taken ownership of the management of her mental illness." However, the GAL maintained that Hollee waived the natural-parent presumption by voluntarily relinquishing custody of Carter to Armonda.

¶ 16. The GAL's third supplemental and final report was filed September 15, 2016. The GAL noted that although some improvements to Hollee and Adrien's residence had been made, additional improvements were still needed.

¶ 17. This matter went to trial in September 2016. On January 5, 2017, the chancellor entered a memorandum opinion and final judgment and awarded Hollee custody of Carter. The chancellor first determined that Hollee did not voluntarily relinquish custody of Carter and forfeit the natural-parent presumption. The chancellor found that the order granting temporary guardianship was void due to a lack of subject-matter jurisdiction. He noted that the youth court had exclusive jurisdiction from October 2013 through December 19, 2013. Additionally, the chancellor noted that "Hollee did not join in a request for Armonda to be appointed as a permanent guardian for [Carter] and Hollee did not irrevocably surrender her rights, obligations, and privileges as the natural-parent of [Carter]."

¶ 18. The chancellor further determined that Paul had not shown by clear and convincing evidence that Hollee abandoned or deserted Carter, that Hollee's conduct was so immoral as to be detrimental to the child, or that Hollee was unfit to have custody of Carter. Moreover, the chancellor found "[t]he evidence d[id] not develop that actual or probable, serious physical or psychological harm or detriment w[ould] occur if the custody of [Carter] [wa]s placed with Hollee."

¶ 19. Paul now appeals and argues the chancellor erroneously found that Hollee did not voluntarily relinquish custody of Carter and forfeit the natural-parent presumption.

STANDARD OF REVIEW

¶ 20. "A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous." Vaughn v. Davis , 36 So.3d 1261, 1264 (¶ 9) (Miss. 2010). "A chancellor's conclusions of law are reviewed de novo." Id.

ANALYSIS

I. Whether Hollee forfeited the natural-parent presumption.

¶ 21. Paul argues Hollee "forfeited the [natural-]parent presumption by a voluntary relinquishment." "At the outset of this discussion, we reaffirm that the paramount and ultimate goal in every child custody case must be the best interests of the child." Id. at (¶ 10). Under the natural-parent presumption, "it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party." Id. However, in Grant v. Martin , 757 So.2d 264, 266 (¶ 9) (Miss. 2000), the Mississippi Supreme Court established an exception or a new standard for such instances where the natural parent consents to and joins in court proceedings granting custody to a third party.

¶ 22. In Grant , both the mother and father voluntarily relinquished full custody of their three minor children to the paternal grandparents. Id. at 264 (¶ 1). The grandparents were appointed as guardians pursuant to a chancellor's order. Id. at 264-65 (¶ 1). Two years later, the mother and father divorced and agreed that custody of the children would remain with the paternal grandparents. Id. at 265 (¶ 2). Two years after the divorce and four years after she relinquished custody of her children, the mother petitioned for a modification of custody and the return of her children. Id. at (¶ 3). The chancellor denied the mother's request and dismissed the case. Id. at (¶ 4).

¶ 23. On appeal, this Court "found that grandparents have no right to custody of a grandchild as against a natural parent and that a natural parent's bid for custody must prevail absent a showing of abandonment or unfitness, ... and reversed and rendered in [the mother's] favor ...." Id. at 266 (¶ 7). However, the Mississippi Supreme Court granted certiorari and explained:

While we do not want to discourage the voluntary relinquishment of custody in dire circumstances where a parent, for whatever reason, is truly unable to provide the care and stability a child needs, neither do we want to encourage an irresponsible parent to relinquish their child's custody to another for convenience sake, and then be able to come back into the child's life years later and simply claim the natural parents' presumption as it stands today.

Id. at (¶ 9). As a result, the court adopted a new standard and held "that a natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption." Id. at (¶ 10). The court reversed and remanded for a full hearing on the merits. Id. at (¶ 11).

¶ 24. Additionally, in D.M. v. D.R. , 62 So.3d 920 (Miss. 2011), the court analyzed the waiver of the natural-parent presumption. There, the paternal grandparents sought custody and guardianship of the minor child after the adoptive parents died. Id. at 921 (¶ 3). The natural mother, who had consented to the adoption, also sought custody and guardianship of the child. Id. at (¶¶ 2-3). The court found that the mother was not entitled to the natural-parent presumption since an adoption "acts as an irrevocable surrender of all rights, obligations and privileges of the natural parent with and to the child." Id. at 927 (¶ 26).

¶ 25. Here, unlike in Grant and D.M. , Hollee did not voluntarily relinquish custody of Carter. Although she joined a petition for appointment of temporary guardianship, such petition never requested that custody of Carter be permanently awarded to Armonda, nor did it relinquish Hollee's rights, obligations, and privileges as Carter's natural mother. Moreover, as noted by the chancellor and acknowledged by Paul, the order granting temporary guardianship was ultimately set aside as void. Thus, unlike in Grant and D.M. , we have no court order of relinquishment, only a petition for temporary relief, that in no way relinquished Hollee's rights as Carter's mother.

¶ 26. Paul contends that Hollee's "lack of readiness" and "acquiescence for three years in Paul's actual custody of Carter" are sufficient facts to show voluntary relinquishment by Hollee. However, the record shows Hollee continued to exercise her parental rights, obligations, and privileges throughout this matter. The record shows that despite her joinder in Armonda's petition for temporary guardianship, Hollee never relinquished custody of Carter to Armonda. Instead, Hollee continued to live at Armonda's home with Carter. When she left Armonda's residence and moved in with Paul, Hollee did so with Carter. In other words, Hollee assumed custodial and parental responsibility for Carter despite Armonda's request for temporary guardianship and despite no longer living with Armonda.

¶ 27. Additionally, Hollee maintained custody of Carter while living with Paul. When Hollee went to visit Paul's mother, she took Carter with her. Moreover, when Paul took Hollee to Vicksburg, it was Hollee's understanding that Paul would bring Carter to her. When that did not occur, Hollee returned to Meridian. Upon her return, she was advised of the custody proceedings in youth court. However, as noted by the chancellor, Paul was not straightforward with the youth court regarding the circumstances in September and October 2013. Indeed, as the youth court judgment indicates, Paul asserted that Hollee had "run away" from his home and left Carter in his care. Such an assertion was disingenuous since Paul himself took Hollee to Vicksburg, with knowledge of her location.

¶ 28. It is interesting that Paul cites Hollee's "acquiescence for three years" as support for his voluntary relinquishment argument when it was Paul's disingenuous assertion to the youth court that led to his award of temporary custody. Indeed, Hollee did not voluntarily relinquish custody of Carter to Paul. Instead, Paul initiated custody proceedings in youth court unbeknownst to Hollee, Armonda, and the chancery court. It was not until Paul initiated custody proceedings and claimed that Hollee ran away and left Carter, that Hollee "lost custody" of Carter.

¶ 29. While it is true that Hollee did not move to set aside the youth court orders or immediately move for custody of Carter, she did, through her attorney, write a letter to the youth court on November 18, 2013, disputing the allegations and seeking clarification of the proceedings. Additionally, Hollee moved for visitation, which was granted. While awaiting trial in this matter, Hollee maintained contact and continued visitation with Carter, and worked to improve her mental health as well as her physical surroundings (i.e., her home) in order to provide a more stable environment for Carter.

¶ 30. In support of his voluntary relinquishment argument, Paul relies on Hill v. Mitchell , 818 So.2d 1221 (Miss. Ct. App. 2002). In Hill , the parents of the minor child divorced in December 1987. Id. at 1222 (¶ 2). In August 1988, the father and the paternal grandparents moved for a temporary emergency order and asserted that since the final decree of divorce, the child had resided with the paternal grandparents. Id. at (¶ 3). The grandparents claimed that the mother had taken the child from their home while under the influence of drugs and alcohol. Id. The chancellor found the child to be in immediate danger and entered an order granting the grandparents temporary physical custody of the child. Id. at (¶ 4).

¶ 31. In September 1988, the grandparents moved for permanent legal and physical custody of the child. Id. at (¶ 5). The father joined the complaint. Id. The mother subsequently answered and filed a cross-complaint seeking custody. Id. However, there were no further proceedings until the child's mother filed a complaint for modification eleven years later in December 1999. Id. at (¶ 6). Following a hearing, the chancellor found the mother had "constructively abandoned" the child and had "delegated parenting to the [grandparents]." Id. at (¶ 7).

¶ 32. On appeal, this Court noted that the grandparents had had custody of the child since she was eight months old. Id. at 1225 (¶ 23). Moreover, we noted that the mother had not seen the child "from at least the time that she was eight months old until three years of age." Id. We found that "[t]he substantial passage of time, both before the entry of the temporary order and certainly between 1988 and 1999, was an acceptance by [the mother] of the present custody arrangement" and affirmed the chancellor's judgment. Id. at 1226, 1228 (¶¶ 26, 45).

¶ 33. We find Hill distinguishable. Unlike in Hill , Hollee did not go years without seeing her child. Hollee maintained contact and visitation with Carter while in Paul's temporary custody. Moreover, unlike in Hill , Hollee did not allow Paul's temporary custody to remain unchallenged for eleven years. Although Carter remained in Paul's custody for three years pending trial, there was consistent movement by the parties to litigate and resolve this matter.

¶ 34. Although Hollee is a young, teenage parent, there is no evidence that Hollee is "an irresponsible parent [who] relinquished [her] child's custody to another for convenience sake" and now attempts "to come back into the child's life years later." Grant , 757 So.2d at 266 (¶ 9). As Hollee's actions did not amount to a voluntary relinquishment of custody, the chancellor did not err in finding that the natural-parent presumption applied.

II. Whether Paul failed to rebut the natural-parent presumption .

¶ 35. Although not specifically asserted, it appears Paul claims the chancellor erroneously concluded that he failed to rebut the natural-parent presumption by clear and convincing evidence. We disagree.

¶ 36. The natural-parent presumption "may be rebutted by clear and convincing evidence that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent's conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody." Wilson v. Davis , 181 So.3d 991, 995 (¶ 7) (Miss. 2016). Additionally, the presumption "may be rebutted by clear and convincing evidence that actual or probable, serious physical or psychological harm or detriment will occur to the child if custody is placed with the natural parent, such that granting custody to the third party is substantially necessary to prevent such probable harm." Id. at 995-96 (¶ 8). "Such a finding must prevent probable harm to the child, and not simply find that the third party can provide the child with different or arguably 'better' things." Id. at 997 (¶ 8). "If the natural parent presumption is rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child's best interests." Id. at 995 (¶ 7).

¶ 37. Paul does not challenge the chancellor's findings regarding each factor. Instead, Paul claims that "[r]igid adherence [to proving one of the four factors] placed [Carter] in a circumstance which is clearly not in his best interests." See id. at (¶ 8) (noting "that the rigid adherence to proving one of the four precise factors to rebut the natural parent presumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests"). However, as noted by the GAL, simply because Paul may offer a more suitable home for Carter is not enough to rebut the natural-parent presumption. Indeed, the chancellor found there was no evidence that "actual or probable, serious physical or psychological harm or detriment w[ould] occur if the custody of Carter [wa]s placed with Hollee."

CONCLUSION

¶ 38. We find the facts of this case do not show that Hollee forfeited the natural-parent presumption by voluntary relinquishment. Additionally, Paul failed to provide clear and convincing evidence to rebut the natural-parent presumption. Accordingly, we affirm the judgment of the Lauderdale County Chancery Court.

¶ 39. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      For privacy purposes, we substitute a fictitious name for the minor child and use the fictitious name in lieu of initials to facilitate review of the opinion.

      Hollee and Clayton's relationship ended when Hollee became pregnant with Carter.

      For unknown reasons, the order entered by the chancellor on October 11 was not filed by the chancery clerk until October 30, 2013.

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


author: FAIR, J., FOR THE COURT:

text:
    Martez TAYLOR a/k/a Martez D. Taylor a/k/a Martez Deonte Taylor, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01468-COA
    Court of Appeals of Mississippi.
    May 8, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, Jackson
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Martez Taylor was tried for robbery and possession of a firearm by a convicted felon following an altercation with his girlfriend's aunt, Danielle Brent. Brent claimed Taylor had attacked her suddenly and taken her phone, credit cards, and pistol. Taylor testified he took the gun after she threatened him with it and then immediately brought the pistol and the other items (which he had taken by mistake in his haste to leave) to his mother so she could return them. The circuit court refused to instruct the jury on Taylor's asserted defense of necessity after finding that Taylor had not established that he got rid of the gun at the first opportunity. The jury acquitted Taylor of robbery but convicted him of possessing a firearm after being convicted of a felony, and Taylor appeals.

¶ 2. We agree with the circuit court that, when a convicted felon takes a possession of a firearm out of necessity, he is required to act immediately to relieve himself of it once the need has passed. But the necessity does not end until the defendant has an adequate alternative to possession of the gun, which means that the defendant may delay when it is necessary to transfer the weapon safely. We conclude that a reasonable juror who believed Taylor's testimony could have found the necessity defense meritorious. The jury therefore should have been instructed on Taylor's theory of the case, and because it was not, we reverse his conviction and remand for a new trial.

DISCUSSION

1. Necessity

¶ 3. "[N]ecessity ... provides a valid defense to the offense of felon in possession of a firearm, but ... the record must contain an evidentiary foundation to support the defense." Anderson v. State , 185 So.3d 1015, 1024 (¶ 37) (Miss. Ct. App. 2014). The necessity defense requires a showing that "(1) the act charged was done to prevent a significant evil; (2) there [was] no adequate alternative; and (3) the harm caused was not disproportionate to the harm avoided." Flowers v. State , 51 So.3d 911, 913 (¶ 7) (Miss. 2010).

¶ 4. Taylor testified that he had been staying with his girlfriend and her infant child (Taylor was not the child's father) in a hotel room for about three months, when one morning Brent, his girlfriend's aunt, showed up at the door. The girlfriend let her in, and Taylor noticed Brent was holding a cell phone and a small-caliber pistol. When Taylor tried to leave, Brent-who Taylor testified did not like him seeing her niece and had previously threatened to shoot him-blocked his way and began waiving the pistol and pointing it at him. Brent was "furious" as she waved the gun at Taylor while speaking to her niece. Taylor chose a moment when the gun was not pointed at him to grab it and force it down. The two struggled over the gun until Taylor bit Brent on the wrist and she dropped it. Both went for the gun, but after some "wrestling," Taylor came up with it and Brent "stormed out of the room." Taylor then hurriedly grabbed some of his things that were within arm's reach and left. As he was walking away from the motel, he saw a city bus approaching, and he took it to near where his mother lived. After getting off the bus, Taylor "immediately" went to his mother and gave her the gun and other items that did not belong to him, which he had inadvertently taken when he fled. He asked her to return them, and she did. It is not clear from the record how far Taylor's mother's home was from the motel, but Taylor estimated that he possessed the gun for about twenty minutes.

¶ 5. Taylor offered a necessity jury instruction, D-11, but it was refused. The trial court found both that Taylor had failed to show necessity in taking the gun and had failed to show any necessity in keeping it after Brent left. On appeal, the State only pursues the second theory: that Taylor kept the gun after the necessity had passed.

¶ 6. The grant or denial of a jury instruction is reviewed for an abuse of discretion. McInnis v. State , 61 So.3d 872, 875 (¶ 10) (Miss. 2011). That discretion is limited, however, as "a defendant is entitled to have jury instructions given which present his theory of the case." Newell v. State , 49 So.3d 66, 74 (¶ 20) (Miss. 2010). The trial court should give such an instruction unless it "incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Id. And "[w]hen serious doubt exists as to whether an instruction should be included, the doubt should be resolved in favor of the accused." Id.

¶ 7. The State contends that Taylor's proffered necessity instruction was without foundation in the evidence because "he could have thrown the gun out of the motel room or he could have had [his girlfriend] secure the gun after he took it from [Brent]." The State analogizes this case to Williams v. State , 953 So.2d 260, 263-64 (¶¶ 7-10) (Miss. Ct. App. 2006), and Davis v. State , 69 So.3d 45, 48-49 (¶¶ 11-14) (Miss. Ct. App. 2011), but both of those cases involved defendants who armed themselves in advance of confrontations; they have little relevance to today's case. We agree, however, that "[a] defendant is not entitled to a necessity defense when he or she pursues a continued course of criminal conduct after circumstances justifying such conduct cease to exist."

Myers v. State , 153 So.3d 581, 587 (¶ 20) (Miss. 2014).

¶ 8. It is unclear whether the State argues that Taylor should have thrown the gun during the altercation or simply abandoned it somewhere once the coast was clear, but both ideas strike us as untenable. Turning to the elements of the necessity defense as articulated in Flowers , the risks of the gun discharging upon hitting the ground or being picked up and turned against Taylor before he could retreat to safety are "significant evils." See id. And "the harm caused was not disproportionate to the harm avoided" because, while the statute may technically criminalize it, there is little harm in a convicted felon, who has come into possession of a firearm through necessity, holding it briefly when required to ensure that it is safely transferred to a responsible person. See United States v. Mooney , 497 F.3d 397, 407 (4th Cir. 2007) (citing United States v. Mason , 233 F.3d 619, 625 (D.C. Cir. 2000) ). A reasonable juror could likewise find that abandoning the gun in a public place or entrusting it to a complete stranger were not adequate alternatives to its brief continued possession. See Flowers , 51 So.3d at 913 (¶ 7).

¶ 9. As to the suggestions that Taylor should have just stayed put and called the police or gone somewhere else and given the gun to some other person, the Fourth Circuit's discussion in Mooney is instructive. Mooney took a gun from his ex-wife in self-defense and brought it to his place of employment, where he intended to call the police without interference from his ex-wife. Mooney , 497 F.3d at 400. The district court found that there was no potential necessity defense because Mooney left with the gun. Id. at 401. The Fourth Circuit reversed, holding that the necessity defense was available to Mooney because "[w]hen a defendant pursues, immediately and without delay or detour, a reasonable course for handing over a gun to proper authorities after legally taking possession of it, we cannot fault him for not choosing a different reasonable course." Id. at 408. While Mooney said he intended to turn the firearm directly over to the police, the Fourth Circuit later explained that "a defendant's options for reasonable dispossession of a firearm may include turning the gun over to the authorities, but that is not the only option, and ultimately, the reasonableness of the defendant's course of conduct is a question for a jury." United States v. Ricks , 573 F.3d 198, 204 (4th Cir. 2009). In Ricks , the court held that the justification defense was available where the defendant, fearing his roommate may return after once attempting to assault him with a firearm, picked the gun up, unloaded it, and concealed it under some clothes on a dresser used by its owner. See id.

¶ 10. As to the particular question of whether Taylor should have given the gun to his girlfriend, he did not directly address that possibility in his testimony. We recognize that necessity is an affirmative defense and Taylor, as its proponent, bore the burden of proof. See Davis v. State , 158 So.3d 1190, 1195 (¶ 22) (Miss. Ct. App. 2015). And we agree that a reasonable factfinder could conclude that Taylor's necessity defense failed on its merits as a result of his failure to address this possibility. In Stodghill v. State , 892 So.2d 236, 239 (¶¶ 9-10) (Miss. 2005), the defendant claimed he drove under the influence of alcohol because of a medical emergency. On appeal, he argued that the circuit court, which tried the case without a jury, lacked a basis in the evidence to reject his justification defense. Id. The supreme court affirmed Stodghill's conviction because he failed to show that he had asked his daughter and son-in-law, who were present and demonstrably able to drive, to do it instead. Id.

¶ 11. It is important to note that the issue in Stodghill was whether the factfinder could reject the necessity defense, while today it is whether the necessity defense should have been submitted to the factfinder in the first place. As we said, when there is serious doubt as to the defense's viability, it should be submitted to the jury, and despite Taylor's failure to directly address the possibility of handing the weapon over to his girlfriend, we find that there is still a jury question based on the surrounding circumstances. See Newell , 49 So.3d at 74 (¶ 20). Taylor testified that he fled to avoid another confrontation with Brent; he did not know where she had gone or, potentially, what she had gone to get. There were also reasons for the jury to conclude the girlfriend was unlikely to be able or willing to take the gun: she was twenty or twenty-one years of age and was caring for a five-month-old infant. She apparently ended her relationship with Taylor after the incident and left the state, and the jury could have accepted Brent's testimony that her niece was solidly on her side and that the confrontation had occurred because Taylor refused his girlfriend's demands that he leave-"the jury has the prerogative to accept or reject, in whole or part, the testimony of any witness." Smith v. State , 925 So.2d 825, 839 (¶ 33) (Miss. 2006). A reasonable juror could find that the exigencies of the situation outweighed the harm in Taylor's twenty-minute possession of the firearm. See Mooney , 497 F.3d at 407.

¶ 12. We conclude that the circuit court erred in refusing to instruct the jury on Taylor's necessity defense. As to the potential that this might be harmless error, the case was essentially a "he said, she said." Taylor and Brent were the only witnesses to the altercation to testify at trial, and the jury clearly rejected at least some of Brent's account, as it acquitted Taylor of robbery despite her direct and unambiguous testimony that one had occurred. The jury deliberated for some time over two days and even sent notes to the circuit court asking about the use of the word "unlawful" in the context of possession of a firearm in the indictment and jury instructions. The fourth and final note asked if there was "a lawful way for a felon to be in possession of a firearm" and whether the jury could "have any research material on state law"; Taylor was convicted after the court answered "no" to both questions. This is not a case where we can find refusing to submit the defense to be harmless error.

2. Impeachment with Prior Convictions

¶ 13. The trial court allowed Taylor to be impeached with the details of his prior convictions, pursuant to Mississippi Rule of Evidence 609(a)(1)(B), but without making on-the-record findings regarding the factors outlined in Peterson v. State , 518 So.2d 632, 637-38 (Miss. 1987). The failure to make such findings on the record is reversible error in and of itself "in those cases where the accused's credibility was central to his defense or where the evidence was hotly disputed." See Jones v. State , 702 So.2d 419, 421-22 (¶¶ 15-17) (Miss. 1997).

¶ 14. We note, also, that the trial court found the prior convictions admissible for impeachment only, yet the prosecution clearly went beyond that purpose to suggest the prior convictions were evidence of Taylor's intent in taking the various objects belonging to Brent. While this particular issue should not recur on remand (as Taylor was acquitted of robbery and will not be retried for that offense), if the details of Taylor's prior convictions are found to be admissible on remand their use should be limited to credibility "and not to show a propensity ... to have acted on the present occasion in conformity with the criminal character suggested by the previous conviction." Id. at 422 (¶ 17) (citation and internal quotation marks omitted).

3. Sentencing as Habitual Offender

¶ 15. Finally, Taylor contends that his indictment insufficiently charged him as a habitual offender and that the court lacked sufficient evidence to support a life sentence under Mississippi Code Annotated section 99-19-83 (Rev. 2015). These contentions are made for the first time on appeal, and so we decline to address them. If the issue were the sufficiency of the evidence as to the substantive offense (felon in possession of a firearm), we would be required to address it because double jeopardy would bar a retrial should the evidence have been insufficient for anything but an acquittal. See Newell v. State , 175 So.3d 1260, 1267-68 (¶ 5) (Miss. 2015). But "the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context." Monge v. California , 524 U.S. 721, 734, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998). Since we are reversing Taylor's conviction and remanding for a new trial, the circuit court can address these issues, should Taylor choose to raise them there.

¶ 16. REVERSED AND REMANDED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      The circuit court also found that Taylor failed to establish necessity to take the gun in the first place, but the State does not advance that theory on appeal.

      The necessity test employed by the Fourth Circuit asks whether there was a "reasonable" alternative to possessing the gun, while ours uses the word "adequate," but we take them to have substantially the same meaning. See Stodghill v. State , 892 So.2d 236, 238-39 (¶ 8) (Miss. 2005) (referring to a reasonableness standard in analyzing an asserted necessity defense).