Paul Fountain v. Hollee Fountain Reon (In Re C.B.F.) , 246 So. 3d 928 ( 2018 )


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  •            IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
    NO. 2017-CA-00115-COA
    IN THE MATTER OF THE GUARDIANSHIP OF
    C.B.F., A MINOR: PAUL FOUNTAIN                                               APPELLANT
    v.
    HOLLEE FOUNTAIN REON, CLAYTON                                                APPELLEES
    KEETON, AND ARMONDA FOUNTAIN
    DATE OF JUDGMENT:                          01/05/2017
    TRIAL JUDGE:                               HON. JERRY G. MASON
    COURT FROM WHICH APPEALED:                 LAUDERDALE COUNTY CHANCERY
    COURT
    ATTORNEY FOR APPELLANT:                    LESLIE C. GATES
    ATTORNEY FOR APPELLEES:                    GEORGE H. SPINKS
    NATURE OF THE CASE:                        CIVIL - CUSTODY
    DISPOSITION:                               AFFIRMED: 05/08/2018
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    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,1
    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
    1
    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.
    Clayton Keeton are the natural parents of Carter, a male child born in 2013.2 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.
    2
    Hollee and Clayton’s relationship ended when Hollee became pregnant with Carter.
    2
    ¶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.3 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
    3
    For unknown reasons, the order entered by the chancellor on October 11 was not
    filed by the chancery clerk until October 30, 2013.
    3
    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.4 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
    4
    Albright v. Albright, 
    437 So. 2d 1003
    , 1005 (Miss. 1983).
    4
    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.
    5
    ¶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
    6
    ¶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).
    7
    ¶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
    8
    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
    9
    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,
    10
    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
    11
    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
    12
    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.
    13
    

Document Info

Docket Number: NO. 2017–CA–00115–COA

Citation Numbers: 246 So. 3d 928

Judges: Griffis, Barnes, Greenlee

Filed Date: 5/8/2018

Precedential Status: Precedential

Modified Date: 10/19/2024