Oral arg. – Miss.S.Ct. – Sept. 29, 2014

Chism v. Bright -this termination of parental rights case is on cert.

Abby and Jim were married in 2003 and had one child, Johnny, born in 2004,  They divorced in 2008 and shared joint legal custody of Johnny.. Soon after, Abby filed to modify custody and the chancellor  modified visitation to require Jim’s mother to supervise Jim’s visitation with Johnny.  A year later she filed to terminate Jim’s parental rights.  Abby had remarried and her new husband wanted to adopt the child.

There was testimony about an incident in 2008.  After a night of partying,  Jim woke up and picked up Johnny from his parents’ cabin. He then borrowed a car  and drove Johnny to McDonald’s. While they were in the drive-thru line at McDonald’s,  a witness called the police and reported that Jim was asleep at the wheel.   Jim was  ticketed for public drunkenness. It was then that Abby filed to limit Jim’s visitation.

Jim testified that as a result of not being able to see Johnny, he became depressed. Jim tested positive for marijuana use in May 2010, and he admitted that he used cocaine and marijuana in February, March, and April 2010. In May 2010, Jim became intoxicated and broke into his neighbor’s house. Afterwards, Jim checked into a treatment facility. Upon release in October 2010, Jim claims he kept in touch with his sponsor, began attending church, and met his current girlfriend, Reagan. Jim admitted that on November 19, 2010, he left Reagan’s home and began drinking and ingested numerous Xanax pills. That night, Jim broke into the home of his parents’ neighbors. Another neighbor discovered Jim, who was unresponsive, and the neighbor called 911. Jim was arrested and remained incarcerated through the last day of trial.  Jim admitted to numerous criminal charges, many of which were filed against him prior to his marriage to Abby and prior to the trial. Jim also admitted to tampering with test samples he provided for a drug screen.

Chism v. Bright, 2013 Miss.App. LEXIS 284 p. 9.

The chancellor terminated Jim’s parental rights chancellor citing MCA Sect. 95-15-103 which allows for the termination of parental rights if the parent “exhibits ongoing behavior which would make it impossible to return the child to the parent’s” or “where  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.

Jim appealed and the Miss. Court of Appeals affirmed.  Jim filed a pet., for cert. which was granted.

Court of Appeals’ opinion

Jim’s cert. petition

Jim’s supplemental brief

Abby’s supp. brief

Jim argues that before termination can be ordered under M.C.A. § 93-15-103(1), the court must first find  all of the following – [a]  that the  child has been removed from the home of its natural parents and [b] cannot be returned to the home of his natural parents within a reasonable length of time because [i] returning to the home would be damaging to the child or [ii] the parent is unable or unwilling to care for the child, and [c] relatives are not appropriate or are unavailable” – before proceeding to determine whether parental rights may be terminated.  None of those things happened here, he argues.

Oral argument is at 1:30 on Monday, Sept. 29, 2014 and can be viewed here at that time (click on the link).

The main issue is whether subsection one is a prerequisite for terminating parental rights when there is no adoption contemplated (at the time that Abbey filed to terminate, there was no proposed adoption).

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