JAMES WILSON v. PEARLEAN DAVIS
NO. 2013-CT-01244-SCT CONSOLIDATED WITH NO. 2012-CT-00196-SCT
IN THE SUPREME COURT OF MISSISSIPPI
01/07/2016
DATE OF JUDGMENT: 07/01/2013; TRIAL JUDGE: HON. PATRICIA D. WISE; TRIAL COURT ATTORNEYS:
ON WRIT OF CERTIORARI
EN
KING, JUSTICE, FOR THE COURT:
¶1. In this custody action between a child‘s natural father and her maternal grandmother, the chancery court found that the natural parent presumption was rebutted, and, further, that the best interests of the child were served by remaining in the physical custody of the grandmother, while allowing the father liberal visitation. Because the evidence was insufficient to rebut the natural parent presumption, we reverse and remand the case for further proceedings consistent with this opinion.
FACTS
¶2. Sha‘Nyla Wilson (“Sha“) was born to Concetter Davis and James Wilson on April 20, 2003. Sha has a maternal hаlf-sister, Ka‘Nyla (“Ka“), who is two years older than Sha.
This action began as a paternity and custody dispute between Concetter and James Wilson. James was adjudged to be Sha‘s natural father. Concetter was awarded custody, and James was awarded visitation.
Concetter died in 2011. When Concetter‘s relatives would not return Sha to James, he filed a petition for modification and sought sole legal and physical custody of Sha. The chancellor entered an order that awarded the primary physical custody of Sha to Pearlean Davis, Sha‘s maternal grandmother. The chancellor also awarded James liberal visitation.
In the decision, the chancellor did not treat the issue as an initial custody dispute between a natural parent and grandparent. Instead, the chancellor considered the motion as a modification of child custody based on the prior custody determination between Concetter and James.
The judgment was appealed and assigned to [the Court of Appeals]. [The Court of Appeals] reversed the judgment and remanded the case for the chancellor to make a detеrmination of whether the natural-parent presumption had been rebutted. See Wilson v. Davis, 111 So. 3d 1280, 1283 (¶11) (Miss. Ct. App. 2013).
Wilson v. Davis, No. 2013-CA-01244-COA, 2014 WL 6436839, at *1 (Miss. Ct. App. Nov. 18, 2014). Rather than conduct a new hearing regarding the rebuttal of the natural parent presumption on remand, the chancellor instead simply amended her original order and opinion to find that the natural parent presumption was rebutted.
¶3. The chancellor first found that James had abandoned Sha, but the Court of Appeals reversed that decision, determining that such a finding was not supported by substantial evidence. Id. at *3. The chancellor then found James‘s conduct to be so immoral as to be a detriment to Sha. The chancellor noted that James had been married three times, had a history of dating much younger women, and had a history of dating multiple women at the same time, including committing adultery. She noted that James was seventy-two at the time of the hearing. The chancellor found that James‘s current, much-younger wife, Annette Wilson, had two sons who had serious anger issues, as evinced by the fact that they were in therapy for said issues multiple times per week. The chancellor expressed concern that James had a “lack оf awareness or lack of concerns of the potential danger” to which Sha “could be” exposed. Further, she found that Annette and Sha had no real bond with one another, and that Annette, a homemaker, would be primarily responsible for Sha‘s care.
asking this Court to remove the minor child from the home she has known for the better part of life and from her 10 year old sibling, Ka, who she resides with. Sha will also be taken away from her cousins and a very close college age aunt if Mr. Wilson obtains physical custody. In light of the emotional stress she has experienced resulting from the untimely death of her mother and considering all factors outlined above, this Court finds that this environment would be clearly detrimental to the minor child and shows an otherwise unfitness by Mr. Wilson to beliеve this is a good environment for his daughter.
The chancellor then found that the natural parent presumption had been rebutted because the court was “clearly convinced that Mr. Wilson has shown himself to be otherwise unfit.” The chancellor then placed Davis, the grandmother, on equal footing with James and applied an Albright1 analysis. Under that analysis, the chancellor found that the best interests of Sha were served by Davis retaining primary physical custody, Davis and James being granted joint legal custody, and James being granted liberal visitation.
¶4. James appealed and Davis failed to file an appellate brief. The Court of Appeals declined to find that Davis‘s failure to file a brief was tantamount to a confession of error. A divided Court of Appeals affirmed the chancellor‘s determination that James‘s conduct was so immoral that he was unfit to have custody, and that the natural parent presumption was thus rebutted. It also found no error in the chancellor‘s Albright analysis. Judge Roberts dissented in an opinion joined by Judge Irving. Judge Roberts argued that he could not “find that the chancery court‘s reliance on this evidence [of Jamеs‘s dating and marital relationships] is clear and convincing evidence of immorality and unfitness such that the natural-parent presumption should be overcome.” He further argued that the other facts of immorality and unfitness found by the chancellor, such as the anger issues of James‘s stepsons, were more suited for an Albright analysis, and had little bearing on James‘s morality or fitness as a parent. Judge Roberts last concluded that he could not “reconcile the chancery court‘s finding that James was so immoral and unfit to parent Sha that the natural-parent presumption wаs overcome, while at the same time awarding him joint legal custody and liberal visitation.” Judge Roberts believed the case should be reversed and judgment rendered granting James custody, while remanding the matter to consider grandparent visitation.
¶5. James filed a motion for rehearing, which the Court of Appeals denied. He then petitioned this court for certiorari review, which we granted. In his petition, he argued that the Court of Appeals’ decision regarding Davis‘s failure to file a brief being tantamount to a confession of error conflicted with prior precedеnt, and that the Court of Appeals’ decision that the evidence of unfitness and immorality against him established by clear and convincing evidence that the natural parent presumption had been rebutted was error. We limit our review to the issue of whether
ANALYSIS
¶6. This Court reviews the chancellor‘s findings for manifest error. Westbrook v. Oglesbee, 606 So. 2d 1142, 1146 (Miss. 1992).
¶7. “The best interest of the child is paramount in any child-custody case.” Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012). Indeed, “[t]his is a principle of law so deeply embedded in our jurisprudence that it should not require further elaboration or citation of authority.” In re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 429 (Miss. 2009). This Court has consistently held that it is presumed that the best interests of a child are served by being in the custody of his or her natural parent, as opposed to a third party. Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013). “[H]uman experience has demonstrated that as a general rule parental love and solicitude for the child‘s welfare are the best guarantee that it will be properly cared for . . . . The presumption in all cases is that the child‘s parents will love it most and care for it better than anyone else and it is in the best interest of the child to leave it in the custody of a parent.” Moody v. Moody, 211 So. 2d 842 (Miss. 1968). This 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.‘” Davis, 126 So. 3d at 37 (quoting Smith, 97 So. 3d at 46). 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.” Davis, 126 So. 3d at 37.
¶8. Requiring clear and convincing evidence to rebut the natural parent presumption in one of the four manners listed is important to “honor[] and protect[] the fundamental right of natural parents to rear their children.” Id. However, this Court takes the opportunity to note that the rigid adherence to proving one of the four precise factors to rebut the natural parent prеsumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests. And, as is clearly established, the best interests of the child is the lodestar in custody cases. This Court has recognized this principle in the past, stating that “[i]n order to overcome this presumption, there must be a clear showing that the parent is unfit by reason of immoral conduct, abandonment, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another.” Moody, 211 So. 2d at 844 (emphasis addеd). With this decision, we mark a return to that principle. The natural parent 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
In other words, if demonstrable, clear and convincing evidence exists that the child will suffer probable harm and detriment in the custody of the natural parent, the court may find that the natural parent presumption is rebutted,
of whether a custody award to the challenging party will be in the child‘s best interests. 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. See Moody, 211 So. 2d at 844 (“The fact that someone else may be in a better position to furnish the child a larger and more convenient home in which to live does not necessarily mean it would be in the best interest of the child to take it from a parent who is otherwise fit to have the custody of the child.“). This “exceptional circumstances” finding means more than that a child‘s bests interests may be served by third party custody; it “requires proof of serious physical or psychological harm or a substantial likelihood of such harm.” Watkins v. Nelson, 748 A.2d 558, 565 (N.J. 2000). More than simply best interests is required, because if that is the only criterion, then a judge may take children from their parents because the judge personally disproves of the parents’ limited means.” Id. at 567 (internal quotations and alterations omitted). By requiring a much higher threshold than simply best interests, the exceptional circumstances finding “is designed to reduce or minimize judicial opportunity to engage in social engineering in custody cases involving third parties.” Id. It is important not to devolve into a less stringent standard because such would easily “evolve into a ‘fitness contest’ whose outcome will depend on the whims of the trial court.” Id. at 568. “The standard that we adopt has as its benchmark the welfare of the child while at the same time protecting parental rights.” Id.
¶9. If the court finds that custody should be granted to the third party under this standard, it is required to make very specific findings of fact on the record. We again emphasize that this is a high threshold. However, we believe this standard will allow chancery courts to reconcile the fundamental rights of natural parents to raise their own children with the primary concern in a custody case, the best interests of the child.3 See Davis, 126 So. 3d at
¶10. Turning to this case, we find that the chancellor erred for several reasons. The original hearing, conducted in the vein of a modification of custody, was held in January 2012. In April 2013, the Court of Appeals reversed the chаncery court, finding that it had applied the incorrect standard and had not determined whether the natural parent presumption was rebutted. In July 2013, after a year and a half had passed with a great potential for changed circumstances, and without holding a hearing in which both parties were on notice of the issue of rebutting the natural parent presumption, the chancery court simply amended its original order. The chancery court should have held a hearing and received and
considered evidence regarding whether the natural parent prеsumption was rebutted.4 See Yelverton, 26 So. 3d at 1055, 1057.
¶11. Furthermore, the evidence found by the chancellor was clearly insufficient to rebut the natural parent presumption. First, the court relied on evidence that James dates and marries women much younger than himself, and that these relationships overlap and include adultery. This Court has noted that marital fault, including adultery, may not be used as a sanction in custody awards. Brekeen v. Brekeen, 880 So. 2d 280, 287 (Miss. 2004).
relationship with a younger woman noted by the chancellor were with Jamеs‘s current wife, and began in approximately 2009, more than two years prior to the hearing. The chancellor made no findings that James was currently engaged in adulterous or immoral relationships, and moreover, made no findings that he was involved in any extramarital relationships that harmed or influenced Sha in any way. See Westbrook v. Oglesbee, 606 So. 2d 1142 (Miss. 1992) (where father and his wife drank alcohol, father used to take drugs but had passed random drug tests by his employer for the past six years, a paternal relative smoked marijuana in front of the child once, and father only had minimal contact with child prior to mother‘s death, the Court found “a stronger case must be made against [the father] and matters of more current nature need to be shown to establish that he is unfit as a parent.“).
¶12. The chancellor also cited animosity between Concetter and Annette and James, including physical altercations, as reason to deny James custody. While certainly noteworthy, as it appears in the best interests of Sha to have her mother‘s memory and her grief for her mother honored, Concetter has passed away, and there is thus no present danger of such animosity or confrontations. These facts are not sufficient to rebut the natural parent presumption, as they do not bear on James‘s fitness or detrimental immorality, but they may be a consideration in a best interests analysis.
¶13. The chancellor also cited the anger issues of Annette‘s two sons as a reason to rebut the natural parent presumption. Again, such issues are certainly of concern. Yet, the
evidence indicated that neither Sha5 nor her stepsister6 had been injured or harmed by the boys. The evidence also showed that the parents were seeking intensive therapy to address the issues. Anger issues in the home of a natural parent that pose a potential danger to a child are certainly something a chancellor should examine in detail. However, in this case, the determination of harm was not based on any proof of actual or probable harm to Sha, but rather, based upon pure speculation on the part of the court. Thus, this is not an appropriate reason to find James unfit or so immoral as to be rebutted the natural parent presumption.
¶14. Because none of the facts found by the chancery court are sufficient to rebut the natural рarent presumption, we must reverse the chancery court on this issue.
CONCLUSION
¶15. While the chancery court examined certain facts regarding James‘s potential
last hearing in this case was nearly four years ago. Thus, on remand, the chancellor should consider the circumstances at the time of the remand hearing. See Vaughn v. Davis, 36 So. 3d 1261, 1267 (Miss. 2010).
¶16. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS REVERSED, AND THE CASE IS REMANDED.
WALLER, C.J., LAMAR, KITCHENS, PIERCE AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.
DICKINSON, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶17. The majority‘s decision to remand this case for a hearing is appropriate. But the only reason that, pending the outcomе of that hearing, the child, Sha‘Nyla Wilson, remains with her grandmother is that—with no legal right to do so—she refused to turn the child over to her natural father. The natural-parent presumption has not been overcome, and this Court should not aid a third party who, with no legal right to do so, holds a child away from her natural parent. While the particular facts of this case may lead some to the personal view that Sha‘Nyla would be “better off” with her grandmother and half-sibling while this case drags on, the precedent set today is remarkable and unsettling.
¶18. The law presumes that it is in Sha‘Nyla‘s best interest to be in the custody оf her father.7 And assuming this Court intends to maintain some semblance of stability, this long-
recognized presumption applies no less to this Court than to the trial courts and litigants who come before them. So, had the majority began its analysis (as it should have) with the presumption that it was in Sha‘Nyla‘s best interest to be in the custody of her father, why is the majority leaving her with a third party?
¶19. We, too, should respect and follow the law. But as of today, even though this Court has determined that the natural-parent presumption has not been overcome, the majority aids the grandmother in continuing to hold the child аway from her natural father, who has been deprived of having his child for four years while this matter has crept through—and will continue to creep through the courts. This ad hoc approach to deciding cases based on personal views of the facts rather than an impartial application of the law, is wrong.
Notes
Another example involved a child with cystic fibrosis and cerebral palsy. In re Guardianship of D.R.G., 62 P.3d 1127 (Nev. 2003). The child lived with his mother for the first two years of his life, then moved to Las Vegas with his mother, his aunt, and his sister. Id. at 1129. There, he lived primarily with his aunt, but spent significant time with his mother. Id. His aunt took him to his weekly physical therapy, spent the night in the hospital with him, and had participated in his care since birth. Id. His mother was then diagnosed with terminal cancer. Id. At a custody trial between the aunt and the father, the child‘s doctor testified that “[m]anaging the child‘s cystic fibrosis and cerebral palsy is of the utmost importance to the child‘s well being. . . . [C]ystic fibrosis is a terminal disease and . . . failure to strictly follow treatment and medication regimens can result in serious detrimental effects.” Id. at 1131. Furthermore, he “emphasized that continuity of care is an important factor in determining the success of treatments” and that “the child is in the mild range of the disease at this time, due mostly to the excellent care and therapies the child has received.” Id. at 1130-31. The court also found that the father visited the child only sporаdically, that he had “never gone to any of the child‘s medical appointments[,] . . . never spoken to any of the child‘s medical care providers in Las Vegas[,] . . . never stayed all night in the hospital with the child[,] . . . [and] does not even know how many times the child has been in the hospital.” Id. at 1129. Additionally, the father had “admittedly referred to the child in such derogatory terms as ‘Cripple’ and ‘Sausage Arm,’ due to the child‘s physical malady.” Id. The longest visit the child ever had with his father at his father‘s home was for three days, and the child returned home with more than half of his required medicines untaken, and such hаd happened on more than one occasion. Id. at 1129, 1131. The father did not even know the child‘s birth date. Id. at 1129. The Court noted that the father had not demonstrated that he could adequately care for the child, and that granting him custody could undermine the child‘s physical and emotional welfare. Id. at 1131. The court found that, while the father was not unfit, he was not qualified to have custody of the child due to extraordinary circumstances. Id. at 1132. The court did note that if the father took significant steps to be reunified with his child, it would revisit the custody determination. Id.