Jimmy Ray Chism, Jr. v. Abby Gale Morris Chism Bright

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2011-CT-01472-SCT
JIMMY RAY CHISM, JR.
v.
ABBY GALE MORRIS CHISM BRIGHT
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 09/08/2011
TRIAL JUDGE: HON. C. MICHAEL MALSKI
TRIAL COURT ATTORNEYS: J. MARK SHELDON
JAK M. SMITH
COURT FROM WHICH APPEALED: UNION COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: GREGORY M. HUNSUCKER
JAK M. SMITH
ATTORNEYS FOR APPELLEE: J. MARK SHELDON
JANA L. DAWSON
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: REVERSED AND REMANDED - 12/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
LAMAR, JUSTICE, FOR THE COURT
¶1. Jimmy Ray Chism Jr. challenges the termination of his parental rights to his son,
Johnny.1 Because we find that Jim’s parental rights were wrongfully terminated, we reverse
the judgments of Court of Appeals and the chancery court and remand this case to the Union
County Chancery Court.
1
We use a fictitious name for the minor child to protect his identity.
FACTS AND PROCEDURAL HISTORY
¶2. Jimmy Ray Chism Jr. and Abby Gale Morris Chism Bright married on October 17,
2003.2 They had one child, Johnny, on March 17, 2004, and they divorced on March 10,
2008. Under the divorce decree, the parties had joint legal custody of Johnny; Abby had
primary physical custody, and Jim had regular, unrestricted visitation. From March 2008 to
July 4, 2008, Jim executed his visitation rights without incident.
¶3. On July 4, 2008, Jim and Abby separately attended a party at Darden Lake. Johnny
stayed with Jim’s parents, Dr. Jimmy Ray Chism Sr. and Terri Chism, at their cabin near
Darden Lake. On the morning of July 5, Jim picked Johnny up from his parents’ cabin and
drove him to a nearby McDonald’s. While in the drive-through line, Jim fell asleep with the
car in park. The police were called, and Jim was arrested for public intoxication. Johnny
was not injured during the incident, and Terri picked him up from the scene.
¶4. On July 25, 2008, Abby filed an emergency petition for modification of Jim’s
visitation rights, based on the July 5 incident. On August 18, 2008, the chancellor entered
an order for modification of visitation which: (1) required that all Jim’s visitation periods be
supervised by Terri; (2) prohibited alcohol or drugs from being in Johnny’s presence during
his visitation periods with Jim; and (3) prohibited Jim from operating any motor vehicle with
Johnny as a passenger. The order also stated that:
If Jimmy Ray Chism, Jr. fails to report to United States Army training facilities
in Fort Benning, Georgia on September 3, 2008, all visitation will cease[,] and
as a condition for reinstatement Jimmy Ray Chism, Jr. shall comply with all
of the Union County Department of Human Services recommendations,
2
We refer to the parties and to some of the other members of the Chism family by first name
to avoid confusion.
2
including supplying a hair sample for DNA drug testing at a DHS approved
medical facility, and he shall be committed to an in-patient treatment facility
for a period of not less [than] thirty (30) days.
Jim did not report to the United States Army, and he did not begin satisfying the court’s
requirements to reinstate his visitation until July 15, 2009, when he admitted himself into
Haven House for alcohol treatment. He spent fifty-one days at Haven House and, upon his
discharge in September 2009, he attempted to resume his visitation with Johnny. When
Abby did not respond to his requests, Jim filed a complaint for citation of contempt. In
response, Abby filed a countercomplaint for termination of Jim’s parental rights.
¶5. Jonathan Martin was appointed as Johnny’s guardian ad litem on November 20, 2009.
In accordance with Martin’s recommendation, the chancellor awarded Jim and his family one
hour of visitation on December 25, 2009; Jim and his family exercised their visitation rights
without incident. On January 21, 2010, Jim again moved for additional visitation with
Johnny, representing to the court that he had complied with the requirements of the August
18, 2008, modification order, and that the Christmas Day visitation had been a success.
¶6. Ultimately, the chancellor allowed Jim to have supervised visitation with Johnny on
two occasions at his parents’ home in early 2010, and both visits went well. After Jim failed
two drug tests in the spring of 2010, Martin encouraged him to go to the National Counsel
on Drugs and Alcohol Dependancy (NCADD) in Tupelo, Mississippi. Jim presented himself
to NCADD in May 2010, and the director recommended him for inhouse treatment. Shortly
thereafter, Jim burglarized one of his neighbor’s homes while intoxicated. On June 27, 2010,
Jim admitted himself into the Fairland treatment facility in Dublin, Mississippi, where he
stayed for ninety-five days until he was discharged on October 1, 2010.
3
¶7. Trial on Jim’s complaint for citation of contempt and Abby’s countercomplaint for
termination of Jim’s parental rights began on October 18, 2010. Jim testified that he believed
he was on the road to recovery because of the care he received at Fairland, his new anti-
depressant prescription, a renewed spiritual commitment, and his support system, consisting
of his family, girlfriend, and sponsor. Trial adjourned,3 and on November 19, 2010, Jim
consumed large amounts of alcohol and Xanax and broke into a neighbor’s house, where he
passed out. A neighbor found him unresponsive and called 911. Medical personnel
resuscitated Jim, and he was later arrested.
¶8. Trial recommenced on July 11, 2011, and concluded on July 14.4 When trial resumed,
Jim admitted to committing the criminal acts for which he was arrested on November 19,
2010, and he also admitted to adulterating drug-test samples he had provided back in May
of 2010. Jim testified that being incarcerated had caused him to hit rock bottom and had
truly changed his life for the better. He also stated that, despite his absence, his relationship
with Johnny had not deteriorated and that he and Johnny still loved each other very much.
He admitted that, before his incarceration, he thought he was doing everything he needed to
do to stay sober, but that he still relapsed. He admitted that he was an alcoholic and said he
believed he had been an addict his whole life. He also admitted that Johnny needed stability
in his life and that C.J. Bright, Abby’s husband, was a good man who provided Johnny with
that stability. But Jim also emphasized that, besides the July 5 incident, he had never
3
The chancellor’s order does not indicate why the trial was continued.
4
Dr. Chism’s and Terri’s separate complaint for grandparents’ visitation was consolidated
with Abby’s countercomplaint to terminate Jim’s parental rights while the trial was recessed from
October 18, 2010, to July 11, 2011.
4
committed a crime or been intoxicated around Johnny, and he agreed to abide by any
visitation restrictions the court deemed necessary.
¶9. In addition to his own testimony, Jim provided testimony from his parents, his sister,
and his girlfriend. All four acknowledged that Jim had a substance-abuse problem, but all
four also believed he was on the road to recovery and that terminating his parental rights was
not in Johnny’s best interest. Jim also called Dr. Sam Fleming, who was tendered and
accepted as an expert in neuropsychology. Dr. Fleming diagnosed Jim with substance-
induced bipolar disorder and testified that, with the proper treatment regimen, Jim could
overcome his disorder and become a successful member of society. Notably, Dr. Fleming
did not believe Jim had an alcohol addiction. But he did acknowledge that, based on Jim’s
history, he “ha[d] a very poor prognosis for not using alcohol or drugs again.”
¶10. Abby, Bright, and Martin testified in favor of terminating Jim’s parental rights. Abby
testified that Johnny needed a “steady father” in his life, not a father who reemerged every
six months between bouts of drunkenness, rehabilitation, and incarceration. Bright testified
that he wanted to adopt Johnny and would be able to care for him financially without the
benefit of child support. Finally, Martin testified that he believed the grounds for termination
were shown by clear and convincing evidence and that termination was appropriate because:
The minor child would clearly suffer emotional distress for the coming years
if his father, [Jim], continued to travel in and out of his life at the convenience
and scheduling of his limited periods of sobriety. The minor child would
suffer emotional distress as the subject of continued . . . litigation related to his
father’s visitation . . . I believe it’s in the best interest of the minor child to
have a father who is stable, has sound moral judgment, who can contribute to
his upbringing, to his well being; for example, the simple ability to be at
liberty to talk to his teachers or take him to extracurricular activities and to
impart sound wisdom. The last reason I would cite at this time that it would
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be in his best interest for a termination of parental rights and adoption is that
in the event that the minor child’s mother should meet an untimely passing, a
termination at this time of [Jim]’s parental rights and allowed adoption by Mr.
Bright would provide the minor child stability, as his father would be present.
¶11. On September 8, 2011, the chancellor entered an order that: (1) terminated Jim’s
parental rights; 5 (2) awarded Dr. Chism and Terri grandparent visitation; and (3) provided
that Jim could have contact with Johnny after Jim had been sober for a six-month period
following his release from jail. Jim appealed, and the Court of Appeals affirmed the
termination. See Chism v. Bright, 2013 WL 2166104 (Miss. Ct. App. May 21, 2013). This Court
then granted Jim’s petition for certiorari.
STANDARD OF REVIEW
¶12. A chancellor’s findings of fact in a termination-of-parental-rights case are reviewed
under the “manifest error/substantial credible evidence” test and will not be reversed so long
as “credible proof exists to support the chancellor’s finding of fact by clear and convincing
evidence.” W.A.S. v. A.L.G., 949 So. 2d 31, 34 (Miss. 2007). But questions of law such as
statutory construction are subject to de novo review, and if a chancellor misapprehends the
controlling rules of law or acts pursuant to a substantially erroneous view of the law, reversal
is proper. Ethredge v. Yawn, 605 So. 2d 761, 764 (Miss. 1992).
LAW AND ANALYSIS
5
The chancellor found that Jim’s parental rights should be terminated under Mississippi Code
Section 93-15-103(3)(e)(i), which states: “(3) Grounds for termination of parental rights shall be
based on one or more of the following factors: (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[.]” Miss.
Code Ann. § 93-15-103(3)(e)(i) (Rev. 2013).
6
¶13. Parents have a “fundamental liberty interest . . . in the care, custody, and management
of their child” that cannot be taken away without clear and convincing evidence of the
required statutory grounds for termination of parental rights. Santosky v. Kramer, 455 U.S.
745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see also J. Jackson and M. Miller,
Encyclopedia of Mississippi Law § 78:39 (2002) (citing Miss. Code Ann. § 93-15-103(3)).
State statutes providing for the termination of parental rights are subject to strict scrutiny and
“[c]ourts may not add to the enumerated grounds.” Deborah H. Bell, Bell on Mississippi
Family Law 409 (2005) (citing Gunter v. Gray, 876 So. 2d 315 (Miss. 2004)); see also Rias
v. Henderson, 342 So. 2d 737, 739 (Miss. 1977) (holding that statutes affecting fundamental
constitutional rights are subject to strict scrutiny).
¶14. This Court has stated that “[b]ecause parental rights are so important,” the
“circumstances under which [those rights] can be terminated by the government” are “sharply
limit[ed.]” Gunter v. Gray, 876 So. 2d at 317. Title 93, Chapter 15 of the Mississippi Code
sets out the requirements and procedure for the termination of parental rights. See Miss.
Code Ann. §§ 93-15-101 through 93-15-111 (Rev. 2013).
¶15. As mentioned above, the chancellor found that Jim’s parental rights should be
terminated because he exhibited “ongoing behavior which would make it impossible to return
the minor child to his care and custody because he has a diagnosable condition, specifically
alcohol and drug addiction, unlikely to change within a reasonable time which makes him
unable to assume minimally, acceptable care of the child . . . .” But neither the chancellor
nor the Court of Appeals addressed subsection (1) of Section 93-15-103, which sets out three
7
prerequisites that must be met before the court may invoke any specific ground for
termination. Section 93-15-103(1) states:
(1) 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.
Miss. Code Ann. § 93-15-103(1) (Rev. 2013) (emphasis added). See also In Re Dissolution
of Marriage of Leverock and Hamby, 23 So. 3d 424, 428 (Miss. 2009). This Court
previously has categorized the three prerequisites in subsection (1) as follows:
(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 or the parent is unable or unwilling to care for the child; (2) relatives are
not appropriate or are unavailable; and (3) adoption is in the best interest of the
child.
Leverock, 23 So. 3d at 428 (emphasis added).
¶16. Here, it is undisputed that Johnny was not “removed from the home of his natural
parents.” And we also do not find from this record that Jim is “unable or unwilling” to care
for Johnny. First, the chancellor’s finding that Jim was “unable to assume minimally
acceptable care” 6 of Johnny is belied by the fact that he also allowed Jim to have contact with
Johnny after he is sober for six months. Neither Abby nor anyone else objects to this.
6
To be clear, the chancellor was analyzing this under Section 93-15-103(3), instead of
Section 93-15-103(1).
8
Simply because Jim might not be the best choice to be Johnny’s full-time custodial parent
certainly does not mean that he is “unable to care” for Johnny. This Court “has never
allowed termination of parental rights only because others may be better parents.” W.A.S.,
949 So. 2d at 35. Second, it is undisputed that Jim wants to be a part of Johnny’s life and that
they have a very loving relationship, which evidences that Jim is not unwilling to care for
him.
¶17. Moreover, we affirm the overarching premise that termination of parental rights is a
last resort. This intent is evidenced by the Legislature in Section 93-15-103(4), which states:
Legal custody and guardianship by persons other than the parent as well as
other permanent alternatives which end the supervision by the Department of
Human Services should be considered as alternatives to the termination of
parental rights, and these alternatives should be selected when, in the best
interest of the child, parental contacts are desirable and it is possible to secure
such placement without termination of parental rights.
Miss. Code Ann. § 93-15-103(4) (Rev. 2013) (emphasis added). In short, Abby has not
proven the statutory prerequisites found in Section 93-15-103(1) that must be met. As such,
we decline to address the specific ground for termination analyzed by the chancellor, or
whether termination is in Johnny’s best interest. For these reasons, we reverse the
termination order and remand this case to the Union County Chancery Court for further
proceedings consistent with this opinion.
¶18. REVERSED AND REMANDED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.
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