Rickie Brown v. Elizabeth Wiley
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00719-COA
IN RE: GUARDIANSHIP OF RICKIE JAMAL
BROWN, JR., AND EBONY CIERRA BROWN,
MINORS: RICKIE BROWN
v.
ELIZABETH WILEY
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
2/28/2003
HON. PERCY L. LYNCHARD, JR.
GRENADA COUNTY CHANCERY COURT
ARNOLD D. DYRE
DONNY MEEKS
CARLOS EUGENE MOORE
A. E. (RUSTY) HARLOW
CIVIL - CUSTODY
CUSTODY OF MINOR CHILDREN AWARDED
TO MATERNAL GRANDMOTHER. FATHER
GRANTED VISITATION AND ORDERED TO
PAY CHILD SUPPORT.
REVERSED AND REMANDED - 11/23/2004
EN BANC.
CHANDLER, J., FOR THE COURT:
¶1.
Following the death of her daughter, Elizabeth Wiley filed a petition to appoint a guardian and
sought custody of her daughter’s children. The Chancery Court of Grenada County awarded custody of
the children to Ms. Wiley, the maternal grandmother. The children’s father, Rickie Brown, was granted
visitation and was ordered to pay child support. Mr. Brown appeals, raising the following issue:
WAS THE TRIAL COURT MANIFESTLY ERRONEOUS IN GRANTING CUSTODY TO
THE CHILDREN’S MATERNAL GRANDMOTHER?
¶2.
Finding that the chancellor applied the incorrect legal standard, we reverse and remand.
FACTS
¶3.
In July of 1998, Aretha Brown (“Ms. Brown”), a sickle cell anemia patient, moved to Grenada,
Mississippi, with her two children. She moved to Mississippi from Philadelphia, Pennsylvania, to be near
her mother due to her financial difficulties and to be in a warmer climate for her illness. Her estranged
husband and father of her children, Rickie Brown (“Mr. Brown”), stayed in Philadelphia. Ms. Brown died
on October 28, 2002. On October 30, 2002, Ms. Brown’s mother, Elizabeth Wiley, filed a petition to
appoint herself as guardian of her daughter’s children and to grant herself custody. On November 1, 2002,
Mr. Brown returned to Mississippi, requested custody of his children, and refused to leave the state without
taking his children with him. On November 4, 2002, the chancery court granted a temporary restraining
order prohibiting Mr. Brown from taking away the children or removing them from the Grenada School
District.
¶4.
At the request of both parties, the case was decided quickly, and a final hearing was held on
December 23, 2002. On January 13, 2003, the court entered judgment and vested permanent and
physical custody of the children with Ms. Wiley. The judgment awarded Brown “reasonable and liberal
visitation” with his children and ordered him to pay $615 per month. Brown was also granted six weeks
of uninterrupted summer visitation. Mr. Brown filed a motion to reconsider on January 23, 2003. The
chancellor did not change its earlier judgment which gave Ms. Wiley legal and physical custody of Mr.
Brown’s children.
ANALYSIS
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WAS THE TRIAL COURT MANIFESTLY ERRONEOUS IN GRANTING CUSTODY TO
THE CHILDREN’S MATERNAL GRANDMOTHER?
¶5.
At the hearing, the parties and trial court agreed that the leading case regarding the custody rights
of a natural parent is stated in Sellers v. Sellers, 638 So. 2d 481 (Miss. 1994). The Mississippi Supreme
Court stated:
The well-settled rule in a child custody case between a natural parent and a third party is
that it is presumed that the best interest of the child will be preserved by being in the
custody of the natural parent. In order to overcome this presumption there must be a clear
showing that (1) the parent has abandoned the child, (2) the conduct of the parent is so
immoral as to be detrimental to the child, or (3) the parent is mentally or otherwise unfit to
have custody of the child.
Id. at 486 (citing Hale v. Hood, 313 So. 2d 18, 19-20 (Miss. 1975); Rodgers v. Rodgers, 274 So. 2d
671 (Miss.1973)).
¶6.
Applying the three-factor Sellers test, the chancellor found that Mr. Brown had not abandoned his
children, that he demonstrated sufficient moral fitness, and that he was mentally fit to take care of his
children. Ultimately, he decided that Mr. Brown was not entitled to custody on the grounds that he was
otherwise unfit. In deciding that Mr. Brown was otherwise unfit, the chancellor considered three factors.
First, the chancellor noted that Mr. Brown failed to pay his child support in a consistent manner in the time
that his children were separated from him, as evidenced by the fact that he was more than $3,000 behind
in his payments as of the date of the hearing. Second, the chancellor found that Mr. Brown was
unreasonably absent from his children, as shown by the fact that he had seen them only once in the prior
four year period and otherwise communicated with them only by telephone. Third, the chancellor found
that Mr. Brown had failed to provide emotional support for his children while Ms. Brown suffered through
her illness.
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¶7.
The issue before us is unique. There has never been a case in our jurisprudence in which the lower
court decided to deny custody to a natural father solely on the grounds that he is otherwise unfit. Our
review of the chancery court’s decision analyzes whether the chancellor appropriately applied the law to
the facts. A chancery court’s interpretation and application of the law is reviewed under a de novo
standard. Madison County v. Hopkins, 857 So. 2d 43, 47 (¶11) (Miss. 2003); Tucker v. Prisock, 791
So. 2d 190, 192(¶10) (Miss. 2001); In re Carney, 758 So. 2d 1017, 1019 (¶8) (Miss. 2000).
¶8.
We begin our analysis by examining Mississippi Code Annotated § 93-15-103(3) (Supp. 2003),
which lists grounds for termination of parental rights. Although the chancellor did not terminate Mr.
Brown’s parental rights, the statute is helpful for us to use to decide what grounds of “otherwise unfitness”
a court can consider in denying custody. The factors the statute lists includes abandonment; lack of contact
with a child under the age of three for a period of six months or a child three years or older for a period
of one year; episodes of abusive incidents towards the child; substance addiction, severe mental deficiencies
or mental illness, or extreme physical incapacitation making the parent unable to assume minimally
acceptable care of the child; 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 caused at least in
part by the parent; and the parent’s conviction of rape or other sexual misconduct against any child.
Abandonment, moral unfitness, and mental unfitness are all included in this statute; therefore, we find that
a reading of this statute is helpful in deciding what types of factors a court should consider in deciding
whether a natural parent is otherwise unfit for taking care of his children. In fact, courts have used exactly
the same language explaining the burden of proof in termination of parental rights cases as they have used
in explaining the rights of a natural parent to have custody over a third party: “In termination of parental
rights cases, the petitioner must prove that the natural parent either abandoned or deserted the child or is
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mentally or morally or otherwise unfit to rear or train the minor child.” N.E. v. L.H., 761 So. 2d 956, 961
(¶11) (Miss. Ct. App. 2000) (citing Petit v. Holifield, 443 So. 2d 874, 877 (Miss. 1984)).
¶9.
A reading of Mississippi Code Annotated § 93-15-103(3) shows that the legislature intended to
create a strong presumption in favor of the natural parent retaining his parental rights, including the right to
custody. We find that denial of custody to a natural parent in favor of a third party should be granted only
when there is a clear showing that the natural parent has relinquished his parental rights, that he has no
meaningful relationship with his children, or that the parent’s conduct is clearly detrimental to his children.
¶10.
The chancellor was in error in deciding that Mr. Brown had not abandoned his children but then
deciding that he was unfit to care for his children in part because of his failure to stay current on his child
support. The Mississippi Supreme Court has previously and consistently held that “‘constant arrearages
in child support’ do not constitute abandonment or desertion.” In Interest of J.D., 512 So. 2d 684, 686
(Miss. 1987) (quoting In re Adoption of A Female Child, 412 So. 2d 1175, 1178 (Miss. 1982); (citing
Petit v. Holifield, 443 So. 2d 874, 878 (Miss. 1984)). We find that a failure to stay current on child
support goes to whether a natural parent has abandoned his child and cannot be a factor in determining
whether a natural parent is otherwise unfit. The chancellor understood that proving abandonment is
extremely difficult, and he cited Smith v. Watson, 425 So. 2d 1030, 1035 (Miss. 1983), to substantiate
this understanding:
[W]here a parent, without just cause or excuse, forsakes or deserts his infant child for
such a length of time, and under such circumstances, as to show an intent to shirk or evade
the duty, trouble or expense of rearing it, or a callous indifference to its wants, or a
reckless disregard for its welfare, he or she is guilty of such abandonment of it as to bar his
or her right thereafter to reclaim its custody from any person who may have ministered to
and protected it during such period of desertion.
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We find that in deciding that a failure to stay current on child support constituted grounds of unfitness, the
chancellor misapplied the principle of abandonment as defined by the Mississippi Supreme Court.
¶11.
The chancellor also decided that Mr. Brown was unfit to care for his children because he saw them
only once in the four years that they had lived in Mississippi, with a planned trip to Grenada for the
Thanksgiving 2002 holidays. In Mr. Brown’s sole visit with his children, Mr. Brown visited them in
Mississippi for a week, and his children stayed with him in Philadelphia for about a month, in June and July
of 2000. Once again, we find that the chancellor misapplied the abandonment standard. We also find on
these facts that Mr. Brown’s infrequent physical visits cannot be used as a factor in deciding that Mr.
Brown was otherwise unfit to care for his children. In this situation, Mr. Brown’s frequent telephone calls
to his children show the closeness of the relationship Mr. Brown had with his children. As a bus driver who
had difficulty earning a decent income and who was physically far away from his children, Mr. Brown
simply did not have the time or money to make frequent visits from Pennsylvania to Mississippi. Both of
his children testified that the telephone calls were frequent and that Mr. Brown called them about once a
week. In addition, the fact that the chancellor granted Mr. Brown liberal visitation shows that the
chancellor was satisfied that Mr. Brown was a fit person to have custody of his children. Thomas v.
Purvis, 384 So. 2d 610, 613 (Miss. 1980).
¶12.
The chancellor also held that Mr. Brown failed to show proper emotional support for his children
as Ms. Brown suffered through her illness and died. We find this holding to be erroneous as a matter of
fact. The chancellor’s holding was based on the fact that Ms. Wiley was the person taking care of the
children when Ms. Brown spent long periods of time in the hospital. Even though Ms. Wiley’s care and
concern for her grandchildrenis commendable, Mr. Brown was unable to take part in his children’s day-today activities because he was far away from his children. We also find nothing in the record showing that
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Mr. Brown’s failure to provide emotionalsupport affected his relationship with his children in any way. Mr.
Brown’s daughter, Ebony, testified that she loves her daddy and that she believes her daddy loves her.
Mr. Brown’s son, Rickie, Jr., testified that he had a good time during his June and July 2000 visit to
Philadelphia and that he stayed in close contact with his father after this visit. There was no indication by
either child that they were angry with their father for not doing more for them while their mother was ill or
after their mother’s death. When Mr. Brown came to Mississippi after Ms. Brown’s death, Mr. Brown
saw his children but later had to stop seeing them because the court placed a restraining order on him. We
are compelled to reverse the chancellor’s finding that Mr. Brown failed to provide proper emotional
support for his children, seeing no evidence in the record to support this finding. Crow v. Crow, 622 So.
2d 1226, 1227 (Miss. 1993); Bell v. Parker, 563 So. 2d 594, 596-97 (Miss. 1990)
¶13.
The chancellor decided that Mr. Brown was not entitled to custody because he was otherwise unfit
as a parent. Although a court is within its discretion to deny custody to a natural parent based on
miscellaneous grounds, it must also appreciate the seriousness of granting custody to a third party over a
natural parent. In awarding custody to a third party, the Mississippi Supreme Court has stated the natural
parent presumption as early as the year 1900: “[Children] must and ought to be subject to the custody and
control of those who are immediately responsible for their being, for the reason that by nature there has
been implanted in the human heart those seeds of parental and filial affection that will assure to the infant
care and protection in the years of its helplessness.... that the primary object is the interest of the child, the
presumption of the law is that its interest is to be in the custody of its parent.” Hibbette v. Baines, 78 Miss.
695, 704, 29 So. 80, 81 (1900) (quoting Weir v. Marley, 12 S.W. 798, 800 (Mo. 1890)). This
presumption is overcome only by clear and convincing evidence. In overcoming this presumption,
especially when making the determination on miscellaneous grounds, a court should look for factors that
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indicate a natural parent’s absence of a meaningful relationship with his child or behavior of the parent that
is clearly detrimental to his child. In this case, the chancellor denied custody to Mr. Brown due to his
inability to pay his child support in full and his inability to visit his children on a regular basis. In doing so,
the chancellor was, in effect, denying Mr. Brown custody on the grounds of abandonment while
simultaneously holding that Mr. Brown had not abandoned his children.
¶14.
Even though Mr. Brown’s children are well cared for by their grandmother in Mississippi, a finding
of unfitness is necessary to award custody to a third party over a natural parent. This finding is necessary
before the court can decide the best interests of the children. In re Custody of M.A.G., 859 So. 2d 1001,
1004 (¶7) (Miss. 2003). We find that the chancellor incorrectly applied the law in finding that Mr. Brown
was an unfit parent. We also find that the chancellor’s holding that Mr. Brown was not emotionally
available for his children is unsupported by the record.
¶15. THE JUDGMENT OF THE CHANCERY COURT OF GRENADA COUNTY IS
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, GRIFFIS, BARNES AND ISHEE,
JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
IRVING, J., DISSENTING:
¶16.
The majority reverses and remands the trial court's grant of custody of Rickie Brown's children to
their maternal grandparents because, in the view of the majority, the trial court "incorrectly applied the law
in finding that Mr. Brown was an unfit parent." I agree that the trial court erred in granting custody of Mr.
Brown's children to their maternal grandparents, and I also agree that the trial judge incorrectly applied the
law to the facts. However, my reading of the record reveals that the trial court did not apply an erroneous
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legal standard. Rather, it incorrectly and inappropriately attempted to make the facts fit the law. Therefore,
I dissent from the majority's decision to remand this case for further proceedings. I would reverse and
render the trial court's judgment granting custody to the grandparents because, in my opinion, the trial court
applied the proper legal standard, but its finding that Mr. Brown is an unfit parent is not supported by
substantial evidence.
¶17.
To demonstrate that the trial judge used the proper legal standard, I quote extensively from the
judge's ruling.
From June of 1998 until July of 2000, the defendant had no personal contact except by
telephone with his children. In July of 2000, the children were taken to the State of
Pennsylvania and stayed for a short period of time with the defendant father. Since that
time, they had no personal contact with him, again, except by telephone, until
approximately November 1 following the death of his wife when he traveled here to
Mississippi to attend her funeral. Only once during the period of time from June of 1998
until the time of his wife’s death in 2002 did the father have any contact with his children.
It’s a span of some four and a half years.
His child support throughout the period of time which I have enumerated during their
separation, which they were never divorced incidentally, was erratic at best. He was court
ordered to pay the amount of $615 per month beginning on July 1 of 2001. Since that
period of time, his arrearage has reached $4,397 according to Exhibit 3 entered into
evidence as testimony. His testimony that he voluntarily paid approximately $500 per
month is totally uncorroborated by any other witness, as well as any physical evidence.
Moreover, the testimony as to his payment of support is doubtful in this Court’s mind in
so much as his performance after the court ordered support was erratic at best. Those are
the facts. We look then at the law.
The parties have pretty much agreed on the law. They pretty much agreed on the facts
with the exception of a few, but they well agreed on the law. Sellers vs. Sellers is a
leading case in Mississippi cited at 638 So.2d 481, a 1994 Mississippi Supreme Court
case, makes the following comment: "The well settled rule in a child custody case
between a natural parent and a third party is that it is presumed that the best
interest of the child," or children in this case, “will be preserved by being in the
custody of the natural parent. In order to overcome this presumption, there must be
a clear showing that, number one, the parent has abandoned the child; number two,
the conduct of the parent is so immoral as to be detrimental to the child; or number
three, the parent is mentally or otherwise fit to have custody of the child," and Sellers
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vs Sellers cites Rogers vs. Rogers, 274 So.2d 671, a ‘73 Mississippi Supreme Court
case which counsel for the defendant cites.
Applying that law to the facts at hand, there has been no showing whatsoever that
Mr. Brown is mentally unfit to have custody of the children, nor has there been any
showing that his morality would make him unfit. The abandonment issue must be
looked at in terms of Smith vs. Watson cited at 425 So.2d 1030, a 1983 Mississippi
Supreme Court case. Abandonment under the circumstances must be as defined in that
case showing an intent to shirk or evade the duty, trouble, or expense of rearing it or
callous indifference to its wants or reckless disregard for its welfare where he or she is
guilty of such abandonment of it as to bar his or her right thereafter to reclaim its custody
from any person who may have administered to and protected it during such period of
desertion. If the burden of proof required simply a preponderance of the evidence,
I would find that he abandoned his children, but the proof calls for a clear showing,
a clear and convincing showing that such is the case, and it cannot be said that he
has abandoned his children.
There are three points to consider however. The Court finds that he has failed to support
his children in a consistent manner since June of 1998. I further find that he has failed to
provide any type of emotional support for his children during the lengthy illness and
subsequent death of his wife in October 28, 2002. It must be remembered that he was
well aware of the physical condition of his wife, that his children, particularly being the
young children that they are, were living with her watching their mother die knowing that
the end was coming in the latter part of 2002, and yet no emotional support or comfort
was given to them by their father. And third, I find an unreasonable absence from the
children exhibited by his lack of personal contact with the children over the past four and
a half years with the exception of one occasion between July of 1998 – June 1998 and
November of 2002.
Those factors being considered, the Court finds under the appropriate case law that
he is otherwise unfit to have custody of his children. Inasmuch as this Court based
upon the evidence presented before it and for the reasons I just set forth finds that he is
unfit to have custody, we look then to the best interest of the children.
(emphasis added).
¶18.
It seems obvious to me, from the quoted passage, that the trial judge applied the appropriate legal
standard, finding no abandonment of the children by Mr. Brown. The trial judge also specifically found that
Mr. Brown was neither morally nor emotionally unfit to have custody of the children. That should have
been the end of the inquiry as there was no facts supporting a finding that Mr. Brown was "otherwise unfit."
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¶19.
Apparently, the majority believes that somehow, on these facts, a finding can be made that Mr.
Brown was "otherwise unfit." Therefore, it is remanding the case for further proceedings. In justifying its
decision, the majority finds "that a failure to stay current on child support goes to whether a natural parent
has abandoned his child and cannot be a factor in determining whether a natural parent is otherwise unfit."
Well, the trial court specifically found that Mr. Brown had not abandoned his children. The court made
this finding after noting both the factors to be considered in determining whether abandonment had occurred
and the standard of proof for finding abandonment. As the quoted passage shows, the chancellor
acknowledged that
[a]bandonment under the circumstances must be as defined in that case showing an intent
to shirk or evade the duty, trouble, or expense of rearing it or callous indifference to its
wants or reckless disregard for its welfare where he or she is guilty of such abandonment
of it as to bar his or her right thereafter to reclaim its custody from any person who may
have administered to and protected it during such period of desertion.
¶20.
Clearly, the trial court was aware of Mr. Brown's lack of payment of child support when it found
that the proof would have been sufficient to find abandonment if the standard of proof were lower than the
clear and convincing standard.
¶21.
In my judgment, the chancellor attempted to reach a result which was not justified by either the facts
or the law. The majority's decision, though I am sure is not intended, gives support to this inappropriate
endeavor. Therefore, for the reasons presented, I respectfully dissent.
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