IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00114-COA IN THE MATTER OF THE ADOPTION OF A MINOR CHILD NAMED IN THE COMPLAINT: JUSTIN DANIEL HARMON APPELLANT

v. KRYSTAL KATHLEEN INGLE AND SHAUN MITCHELL PERRY APPELLEES

DATE OF JUDGMENT: 12/28/2017 TRIAL JUDGE: HON. H. DAVID CLARK II COURT FROM W HICH APPEALED: SCOTT COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: BRIAN DOUGLAS MAYO ATTORNEY FOR APPELLEES: P. SHAW N HARRIS NATURE OF THE CASE: CIVIL - ADOPTION DISPOSITION: AFFIRMED - 05/07/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: C ONSOLIDATED WITH NO. 2018-CA-00116-COA IN THE MATTER OF THE ADOPTION OF A MINOR CHILD NAMED IN THE COMPLAINT: JUSTIN DANIEL HARMON APPELLANT

v. KRYSTAL KATHLEEN INGLE AND SHAUN MITCHELL PERRY APPELLEES

DATE OF JUDGMENT: 12/28/2017 TRIAL JUDGE: H. DAVID CLARK II COURT FROM W HICH APPEALED: SCOTT COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: BRIAN DOUGLAS MAYO ATTORNEY FOR APPELLEES: P. SHAW N HARRISNATURE OF THE CASE: ADOPTION

DISPOSITION: AFFIRMED - 05/07/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ. BARNES, C.J., FOR THE COURT: ¶1. Justin Harm o n and Kry stal Ingle w ere m arried o n April 6, 2006, and d ivorced by order of the Scot t C o unty Chancery Court on August 13, 2 013. 1 Two children were born of the

m arriage: “ B r i a n , ” b o r n in Septem ber 2006, and “Jesse,” born in March 2010. 2 The chancery court awarded K ry stal sole legal and phy sical custody of the children. Because of Justin’s h istory of drug and alcohol a b u s e , t he court ordered him to enter an in-house

r e h a b i l i t a tion program . Upon com pletion of the program , Justin would be granted s u pervised visitation with the children f or s ixty day s, with u nsupervised visitation thereaf ter, provided

no additional incidents of alcohol consum ption or abusive behavior o ccurred. The chancery

c o u r t ’s order f

urther provided: “ [ G]iven the history of alcohol abuse, the m other has the right to suspend visitation should she have v iable, credible inf o r ma t i o n that the f

ather has

resum e d his alcohol abuse, or any drug abuse, or abusive behavior.” Justin was ordered to
pay child support of $250 a m onth. ¶2. In February 2014, having com p leted a thirty

- day drug and alcohol treatm ent program and having received supervised visitation f or sixty day s, Justin was allowed an u nsupervised

1 T h e co u p l e sep arated in A u g u st 2 0 1 2

. D u r in g d i v o rce p r o ceed i n g s, tw o tem p o rary restrain in g o rd ers w ere en tered ag ain st Ju stin d u e to d o m estic v io len ce th at h ad o ccu rred

.

2 F ictitio u s n am es are u s ed to p ro tect th e m in o rs’ id en tities. 2visit with the children. Brian’s grandm o ther, Karen Ingle, had given him a cell p hone, and

he c ontacted his m other and grandparents that night to report that Justin was a cting angry and drunk. A ccording to Kry stal, Brian initially called h er to say that h e was scared because Justin was driving erratically

. H e later reported that Justin had gone into a l iquor store in Meridian, gotten into a f ight with his girlf

riend at t h e mo v i e s , and had l ost the car key s. Brian also called her, say ing that they were at a pond af ter dark with Justin and h is girlf riend; Kry stal could hear J e sse cry ing and Justin tell o n e o f t h e c h ildren to “Shut the f *** up.” Kry stal contacted local law enf o rcem ent, w h o waited outside of Justin’s m o bile hom e that night. However, Justin and the kids stay ed in Meridian with his girlf riend’s f am ily . Brian told Kry stal that Justin was sick all day Saturday

. ¶3. Af ter the kids returned hom e, Kry stal decided to invoke the c ondition of the court’s order and sent a text to Justin, telling him that f u ture visits with t h e children w ould be cancelled due to his alcohol abuse and that he could contact her a ttorney

. Shortly thereaf ter, Kry stal a nd the children m oved to Flora, Mississippi, with her boy f r iend of several m onths, Shaun Perry

. On May 11, 2015, Kry stal and Shaun were m arried. On Novem ber 13, 2016, Kry stal and Shaun f

iled petitions with the chancery court t o adopt and f or the term ination of Justin’s parental rights. 3 A guardian ad litem (GAL) was a p pointed, and the parties were ordered to subm it to urine and hair f ollicle testing f

or drugs by F ebruary 20, 2017. Kry stal and Shaun im m ediately c om plied, with negative test results, but Justin waited until June 23,

3 S ep arate p etitio n s w ere f iled f o r each ch i ld , w h i ch is w h y th e cases o n ap p eal h av e b een co n so lid a ted . We n o te th at in 2 0 1 6 , K ry stal an d S h a u n h ad a ch ild to g eth er. 32017, to com ply with the court’s order. 4 The r esults o f his hair-f ollicle test t ested positive f or m etham

phetam ine. ¶4. The GAL’s report indicated that s i n c e moving to Flora, the Perry f am ily regularly attended church together a n d t h a t t h e m i n o r c h i l d

ren were happy , well-adjusted, and excellent students. They also expressed a pref er e n c e t o u s e “Perry ” as their l ast nam e at school. Letters f rom f r iends and f

am ily indicated that the boy s loved Shaun and that Shaun treated them like they were his own children. ¶5. Trial testim ony revealed that Justin h ad not had any c ontact with the children f or three
y ears. Although Justin claim ed it had been a y ear s ince he used any drugs, a hair-f ollicle test conducted June 2 3 , 2017, tested positive f or m etham

phetam ine. Justin argued that he did not know how to get in t ouch with K ry stal or the c hildren; but t estim o ny s howed that Kry stal had
not changed her c ell phone num ber, and h er parents still lived and worked in the sam e location s ince her and Justin’s m arriage. K ry stal testif

i ed that Justin had sent h er a text once, but he never requested to see the children during that tim e. Kry stal’s m other also testif ied that Justin never contacted her to inquire about the children. ¶6. Justin’s m other, Janet Harm on, acknowledged t h a t d u r i n g s u p e r v i s ed v isitation, Justin would of ten leave to go out. She related that during one v isit, the children witnessed a phy sical altercation between Justin and his f ather. Although s he insisted that the b oy s were
not af raid of Justin, she conf

essed that Brian was going to call 9 -1-1 d uring the argum ent and she stopped him

. There was also testim ony that Justin had t o be hospitalized f o r a drug

4 Ju stin ’ s d ilato ry co n d u ct p ro m p ted th e P erry s to f

ile m o tio n s f

o r co n tem p t to e nf o rce th e co u rt’s o rd er f

o r d ru g testin g . 4overdose af t er the separation. ¶7. The GAL, Joseph Sim s, testif ied that Shaun “is the only daddy that the y o ungest child knows and the only daddy that the older child, [ Brian], really r ecognizes.” He determ ined that although J ustin was now willing and able to c a re f or the children, there was n o question that Justin h a d n ot contacted the children f o r over a y e ar, which constitutes abandonm ent under Mississippi law. The G AL f urther noted that Justin had provided no f inancial support, which was d

ue to a lack of

steady em ploy m e nt likely

because of

drug and alcohol use. He opined that reunif

ication with Justin would not be in the children’s best interest. ¶8. On Decem

b e r 2 8, 2017, the chancery court term inated Justin’s parental rights, f inding that Justin “did not m ake reasonable ef f o rts to attem

pt t o visit and reestablish visitation with the m inor children.” The court also entered a judgm e nt of adoption f

or each child. ¶9. Justin appeals, contending that Kry stal interf ered with his visitatio n a

n d , t h e r ef ore, the chancery court erred in term inating his rights. W e f ind no error and af

f irm

. DISCUSSION ¶10. Although J ustin concedes that he had not seen his children or paid child support f or

m ore tha n t h r e e y e a r s by the tim e of trial, he argues that his “abandonm ent” was due to Kry stal’s interf

erence with his visitation. Justin claim s he was not inf o rm ed of their change in address, which violated the c ourt’s or d e r . T h e r e f ore, he argues that h is parental rights

were wrongf

ully term inated, and he requests that this Court reverse the judgm e nt a n d rem and f or reinstatem e nt of

his parental rights. ¶11. A chancery c ourt’s term i nation o f a parent’s rights is reviewed “under the m anif est

5error/substantial credible evidence test.” Blakeney v. McRee , 188 S o. 3d 1154, 1159 (¶13)

(Miss. 2 016). “[ W ]here there is credible proof f rom which a rational trier of f act m ay have f ound grounds f

or t erm ination by clear and convincing evidence,” the trial court’s decision will not be disturbed. I

d

. (quoting A.B. v. Lauderale Cty. Dep’t of Human Servs. , 13 So. 3d 1263, 1267 (¶14) (Miss. 2009)). The gr o unds f or the involuntary term ination of parental rights are set f

orth in Mississippi Code Annotated section 9 3 -15-119, which provides in pertinent part: (1) A court h earing a petition under this c hapter m ay t e r mi n a t e t he parental rights of a parent when, af ter conducting a n evidentiary h earing, the court f inds by clear and convincing evidence: (a)(i) T h a t t h e p a r e nt has engaged in conduc t c o n s t i t u t i n g abandonm ent or desertion o f the child, as def ined in Section 93-15-103, or is m e ntally , m orally , or o therwise u n f i t to raise the c hild, which shall be establishe d b y showing past or pre s e n t conduct of the parent that dem onstrates a substantial risk of com prom ising or endangering the child’s saf e ty and welf are; and (ii) T h a t t e r m i n a t i o n o f t h e p a r e n t ’ s p a r e n t a l r i g h t s i s app ropriate b ecause reunif ication between the parent and child is n o t desirable toward obtaining a s atisf actory perm a nency

outcom e; or

. . . . (2) An allegation o f desertion m ay be f ully r ebutted b y proof that the parent

. . . . (b) W as wil l i n g t o p r o v ide f i nancial support and to m ake visitations with the child, b ut reasonable attem pts to do so were thwar t e d by the m other or her agents, and that the p a rent is now willing a nd abl e to assum e legal and phy sical care of

the child.

6¶12. “Abandonm ent

. . . includes ‘any conduct by a parent w hich evinces a s ettled purpose

to f orego all duties a nd relinquish all parental claim s t o the child.’” In re Adoption of Minor Child , 931 So. 2d 566, 577 (¶29) (Miss. 2006) (quoting Gunter v. Gray , 876 So. 2d 315, 320 (¶21) ( Miss. 2004)). “T h e t e s t f o r abandonm ent is o bjective and requires a f inding that, under the totality o f the c ircum stances, ‘the natural parent has m anif ested his severance of all t ie s w i th the child.’” Id

. Kry stal testif i ed that Justin never c ontacted her regarding visitation with the children; he only lef t her one voicem a il in 2015 asking if the kids could go see his ailing grandf

ather. Q. Okay

. But h e’s never asked y ou about m aking arrang e me n t s to v isit with the children? A. No, sir.

. . . . Q. Have y ou received any child support pay

m ents? A. No. The last one I received was dated f o r January 2014. The c hancery court concluded in its orders that there was clear and convincing evidence that Justin had not m ade any “reasonable ef f orts” to visit the children. At trial, Justin c l a i med that he tried to call K

ry stal, but she d id not a nswer; so he assum ed she had c hanged her

num ber and “didn’t see the point in continuing.” However, h e adm itted that he never tried
to text h er. Justin a lso knew where Kry stal’s p arents l ived and worked. As the chancellor noted in his f

indings, even if we f

ind all of Justin’s testim ony credible, “it w ould be that he

m ade two or three phone calls, [ his uncle] m ade two or three phone c alls, his m om and dad talked to [ Kry stal’s dad] and that’s about it.”

7¶13. The testim ony also showed that Justin had little t o no relationship with his y oungest

son. A t trial, Justin was not even certain of Jesse’s date o f birth and adm itted his y oungest

son would l ikely not recognize him

. Justin’s relationship with his older son, Brian, was straine d at best because B rian was a witness t o h is alcohol abuse and anger outbursts. Kry stal testif

ied: “A kid should n ot s ee their parent punch a bedroom door a n d h a v e t h eir hand com e out o n the other side try ing to get to their m om . . . . [ Brian] has no good m em ories of being a k id, and it’s because I stay ed [ w i th Justin].” Kry stal c ancelled a s u pervised visitation during the couple’s separation because Brian had hives, which were caused by stress, and she opined that if the boy s had to r esum e visits with Justin, “ i t w o u ld destroy them .” Justin conf

essed that he used m etham phetam ine f

or a couple o f y ears durin g t h e divorce, and the evidence of his drug test showed positive results f or m e tham

phetam ine in 2017. ¶14. At trial, the chancellor expressly r ejec t e d J u s t i n ’ s a r gum ent that Kry s tal interf ered with his visitation, f

i nding: W h en [ Kry stal] lef

t in 2014, she did not do so, in the o pinion of the [ c]ourt by clear and convincing e vidence, with the intent of f orever a n d p e r m anently severing the relationship between these children and Justin. She did so in an attem pt to protect them

and convince him

to get his lif

e in order. He also f ound that the e vidence showed that Justin “willf ully n eglected and r ef

used to provide any support f

or those children.” W e f

i nd substantial and credible evidence to support the chancellor’s f

indings. Kry s tal acknowledged that she did not notif y Justin of her new address but explained that she “was scared because [ she] knew his anger outbursts and his problem s” and that she “was just try ing to be saf e and protect m y kids.” She checked Justin’s

8Facebook page o c c a s i onally to see how he was doing, but because he never contacted her

regarding the children, s h e “assum ed that he h adn’t gotten any better.” Kry stal said she was surprised that Justin never m ade any attem pt to try to resum e visitation. Q. W ere y ou try ing to hide the boy s f rom Justin? A. No. Like I said, I genuinely , in m y gut, thought t h a t , e s pecially as m u ch f inancial and legal help that Randy and Janet had w ith Justin, that they w ere going to f

ile som e sort of

paperwork[ ,] and I would b e able to get him t o go back to rehab so he could g et clean a gain so we could do supervised visits a gain so w e could s tart the whole process over again. I didn’t know he would just drop it. The GAL’s report acknowledged that Kry stal kept the chi l d r e n f r om J ustin, but did so f

or
t h e i r s a f e ty and well-being, noting: “Kry s[ tal], I think, tried to sever all ties with Justin because of their past history , with his violence and drug/alcohol abuse.” However, the GAL f urther observed that neither Justin nor his f am ily m em

bers “took any of the necessary steps to becom e a part of

the children’s lives.” The GAL concluded that it was in the children’s best interest f

or J ustin’s parental rights to be term inated and f or Shaun to be allowed to adopt the boy s. Justin does not dispute the GAL’s f actual f indings. ¶15. Furtherm ore, the evidence was undisputed that Justin provided no f inancial support f or the children since February 2014. The chancery

court observed: If he were w illing to provide f inancial support, he would have com e i nto court and said, “Here’s the b ank statem ent f rom t h e l o c a l bank w here I set up a savings account f

o r m y children, and here’s the m oney .” . . . Instead what he said w as he didn’t work very of ten,

. . . he didn’t h a v e t he m oney to pay the child support. As the G AL testif

ied, Justin, who had a com m ercial driver’s license, did not w ork regularly af ter the divorce, and the attributing cause of his lack of em ploy m ent w as his abuse of drugs

9and alcohol.

¶16. Because there was clear and convincing evidence that Justin m ade no serious ef f ort
to see his chil d r e n o r t o provide f inancial support f

or them f rom 2014 to 2017, we f

ind no

ma n i f e st error in the chancery court’s determ ination that he h ad engaged in con d u c t constituting abandonm ent and that it w ould not be in the children ’ s b e s t interest to be reunif i e d w i t h their natural f

ather. A ccordingly , we af f irm the court’s o rders t o t erm inate Justin’s parental rights and to grant the petitions f o r adoption. ¶17. AFFIRMED. CARLTON AND J. W I L S O N , P . J J . , G R E E N L E E , W E S T B R O O K S , T INDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

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