IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-01065-COA GARY WAYNE STACKS APPELLANT

v. DANIEL SMITH, NICOLE KINARD SMITH, AND RICKY RAAB APPELLEES

DATE OF JUDGMENT: 06/27/2018 TRIAL JUDGE: HON. EDW ARD C. FENW ICK COURT FROM W HICH APPEALED: CHOCTAW COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: TIMOTHY C. HUDSON ATTORNEY FOR APPELLEES: MARK G. W ILLIAMSON NATURE OF THE CASE: CIVIL - ADOPTION DISPOSITION: REVERSED AND REMANDED - 02/20/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. J. WILSON, P.J., FOR THE COURT: ¶1. Gary W ay

ne Stacks’s biological daughter, B.R., was adopted without notice to Stacks while he was incarcerated. Af ter Stacks was r eleased and l earned of the adoption, he f iled

a petition to set aside the a dopt i o n a n d f o r o t her relief

. Stacks a lleged that the adoption decree should be set a side because it was obtained through a f raud on the court and because he was not given notice of t he proceeding or m ade a party

. The chancery court dism issed Stacks’s petition, h olding that it was barred by t he s ix-m onth statute of lim itations f or actions

t o s e t aside a f

inal d ecree of adoption. Miss. Code Ann. § 93-17-15 (Rev. 2018). (S t a c k s f iled his petition six m onths and seven day s af ter the adoption decree was entered.) Stacks appeals f rom the dism issal of

his petition.¶2. W e hold that the chancery c ourt erred by dism issing S tacks’s petition. Stacks’s claim

of f r aud on the court would, if p roven, establish a basis f or s e t t i n g aside the adoption notwithstanding the statute of lim itations. I n addition, Stacks’s allegations that prior to the adoption, he had a s ubstantial relationship with B.R. and was known t o b e h er f ather would also, if proven, justif

y setting aside the adoption d espite the statute of lim i tations. If Stacks had a substantial relationship with B.R. prior to the adoption, t hen he had a r ight to notice of the adoption and was a necessary party to the adoption proceeding, a nd the f a ilure to notif

y him and join him as a party would render the adoption decree void. Bec a u s e S t acks’s petition alleged viable grounds f or set t i n g a s i d e the adoption despite the e x piration of the
lim itations period, it should n ot have been dism issed as a m atter o f law or without a hearing. Theref ore, we reverse and rem and f o r f urther proceedings consistent with this opinion.
F ACTS 1 AND PROCEDURAL HISTORY ¶3. In 2012, Rhonda Raab gave birth to a daughter, B.R. Rhonda’s then-husband, Ricky Raab, was listed as the f

ather on B.R.’ s b i r t h c e r t i f icate. Rhonda and Ricky separated at

som e p oint. The record i s unclear as to when they separated or w hether they ever divorced.
In A pril 2017, Rhonda p a ssed away . In May 2017, Daniel and Nicole Sm ith f iled a petition

to adopt B.R. in the Choctaw County Chancery Court. A pparently , the Sm iths are related to Rhonda, though the record does not explain how they are r elated. In support of the Sm iths’ petition, Ricky s igned under oath a “Voluntary Release of All P arental Rights and Consent

to Adoption” in which he claim ed to be B.R.’s “legal and biological f ather.” The chancery

1 F o r p u rp o ses o f th is ap p eal, w e accep t th e w e l l-p led f actu a l alleg atio n s o f S tack s’s p etitio n as tru e. L a g n ia

p p e L o g istics In c. v. B u ra s , 1 9 9 S o . 3 d 6 7 5 , 6 7 7 (¶5 ) (M i ss. 2 0 1 6 ).

2court granted the petition and entered a decree of adoption on June 13, 2017. 2 ¶4. On Decem

ber 20, 2017, Stacks f

i led a “Petition to Disestablish P aternity , to Establish Paternity , f

or Determ ination of Custody , to S et Aside Adoption, and f or Other Relief

,”

nam ing the Sm iths and Ricky as d ef endants. S tacks alleged that in 2011 he had a rom antic relationship with Rhonda and that he was B .R.’s biological f ather. Stacks f

urther alleged that “all parties ha[ d] acknowledged him as [ B.R.’s] natural f

ather.” S tacks alleged t hat Ricky had “never had a ny interaction with [ B.R.] and ha[ d] alway s vehem ently d enied his paternity

to [ B .R.].” Stacks alleged that he (Stacks) had “raised” B.R., that h e had a “good and loving relationship” with her, and that she lived with him until she was f our y ears old. However, in 2016, Stacks had been incarcerated f or violations of the term s of h is supervised release. Stacks h ad “reason to b elieve” that the Sm iths had adopted B.R. af ter R honda’s d eath while
h e w as still i n prison. 3 Stacks believed that the Sm iths had obtained the ad o p t i o n b y “def raud[ ing] the [ c]ourt.” Stacks alleged that he was not notif ied of the adoption proceeding and that the S m i ths “ deliberately f a iled to nam e [ him ] as a party to the [ proceeding].” Stacks
“assum ed” that the Sm iths “purposef ully m isrepresented to t he [ c]ourt t h a t [ R i cky ] was [ B.R.’s] f ather

. . . or that the natural f ather w as unknown.” S tacks alleged that Ricky m ay have “ colluded with the Sm iths in representing him self t o be [ B.R.’s] natural f ather.” Stacks asked the court to set aside any a doption because he “was n ot m a de a party t o the [ adoption]

2 In th e p resen t c ase, th e ch an cery c o u rt r ev iew ed t h e sealed f i le f ro m t h e ad o p tio n p ro ceed i n g , b u t n o p art o f th at f i le w as m ad e a p art o f th e r eco rd i n t h i s case. T h e co u rt q u o ted R ick y ’s release an d co n sen t in its f in al j u d g m en t in th is case.

3 B ecau se ad o p tio n p r o ceed in g s are co n f id en tial, M iss. C o d e A n n . § 9 3 -1 7 -2 5 (R ev . 2 0 1 8 ), S tack s co u ld n o t b e certain if o r w h en th e ad o p tio n h ad o ccu rred

. 3suit” and because t he adoption was obtained by “an intentional m isrepresentation to def raud the [ c ]ourt.” Stacks alleged that h e was “a f it and s u itable person” to have custody of B.R. and that it was in her best interest f or him to have custody

. ¶5. The Sm iths and Ricky eventually f iled t wo dif

f erent joint m otions to dism iss Stacks’s petition. In their f

irst m otion, t hey argued that Stacks’s p etition was barred by the statute of
lim itations because the petition was f iled six m onths and seven day s af ter a f inal decree of adoption was entered. 4 In their second m otion, t h e y a r g u e d that Stacks lacked standing to
contest the adoption b ecause he had “no legal docum ents” or “DNA results” to show that he was B.R.’s biological f

ather. ¶6. Stacks r esponded t o the def endants’ m otions the next day

. In his r esponse, he alleged that he was p resent a t the hospital when B.R. was born and that he a nd Rhonda lived together with B.R. f

rom B.R.’s birth u ntil April 2 012. He also alleged that he a n d R h onda “lived together on and of

f f or t he next f

our . . . y ears, and several tim es w hen [ Rhonda] m oved out, the child was lef

t in [ his] care.” Stacks f

urther alleged that Rhonda told B.R. that he was her
f ather and that he “acted a s [ B .R.’s] f ather.” Stacks stated that he had been incarcerated f rom A u g u st 2016 to October 2017, that the Sm iths adopted B.R. w hile he was incarcera t e d without notice to him , and that t he def endants knew or should have known that Ricky was
not B.R.’s f

ather. A long with his response to t he m o tions to dism iss, Stac k s a l s o f i l ed a

m otion f or DNA testing to establish paternity and a m o tion f

o r an expedited hearing.

4 S ee M iss. C o d e A n n . § 9 3 -1 7

- 1 5 (“N o actio n sh all b e b ro u g h t t o set a sid e an y f i n al d ecree o f ad o p tio n , w h eth er g ran ted u p o n co n sen t o r p erso n a l p r o c e s s o r o n p ro cess b y p u b licatio n , ex cep t w ith in six (6 ) m o n th s o f th e en try th ereo f .”). 4¶7. The Sm iths and Ricky subsequently f iled a j oint answer to Stacks’s p etition together with a “Counter-Petition f or Determ ination of Rights,” a “Counter-Petition to T e rm inate Parental Rights,” and a “Counter-Petition to Determ ine Custody .” In t heir answer, the
Sm iths and Ricky denied Stacks’s allegations that he was B .R.’s f a ther and that his paternity

was known to them prior to B.R.’s adoption. They stated that they d enied t hose allegations because they had “no personal/direct knowledge t o either admi t o r deny ” them

. In their counter-petitions, the S mi t h s and Ricky did n ot s pecif i cally claim that Ricky was B.R.’s biological f

ather. In addition, they adm itted that “ a round the date of conception,” Rhonda

was “rum o red” to have had “an extram arital a f f air with a m an in Ohio,” was “seeing a m an in O xf ord,” and “would also take of f f or day s at a tim e, t elling nobody o f h er whereabouts.” The Sm iths and Ricky a lleged that the “ f irst tim e any of [ them ] saw o r heard any thing about [ Stacks] w as a f

ter Rhonda was f

our of f ive m onths pregnant.” They did not state what they “heard about” Stacks at that tim e. They argued that Stacks’s petition should be dism issed.
In a ddition, they argued that if S tacks’s paternity w a s e s tablished, his parental r ights should be term i nated because, inter alia, he had deserted, abandoned, or neglected B.R. ¶8. The parties subsequently agreed to DNA testing. The test results showed a 99.99% probability

that Stacks is B.R.’s f

ather. ¶9. At a hearing on M a y 8, 2018, the chance l l o r h e a r d a r g u me n ts on the def endants’

m otions t o dismi s s ; h o wever, the chancellor ref used Stacks’s request to put on testim ony because h e concluded that the m o tions r aised pure questions of law. On June 27, 2018, the

court entered an opinion and f ina l j u d g me n t d ism issing Stacks’s petition. The c ourt ruled

5that t he petition was barred by the statute of lim itations. The court also r uled that Stacks was
not entitled to notice of the adoption because Ricky had consented to the adoption and had claim ed, under o a t h , t h a t he was B.R.’s “legal and biological f ather.” The court reasoned “that only the legal and presum ptive f ather, Ricky Raab, was entitled to n otice of [ B.R.’s] adoption.” For essentially the sam e reason, the court a lso held that Stacks lacked “ standing” to object to the adoption. Stacks appealed.
ANALYSIS ¶10. A dism issal based on the statute of lim itations presents a question o f l a w t h a t this
Court r eviews de novo. Anderson v. R & D Foods I nc. , 913 S o. 2d 394, 397 (¶7) (Miss. Ct. App. 2005). W e accept t he w ell-pled f actual a llegations of the petition a s true. L agniappe Logistics Inc. , 199 So. 3d at 677 (¶5).
I. Fraud on the Court ¶11. In his petition to s et a side the adoption, Stacks specif ically alleged that the adoption was obtained through a f

raud on the court. Moreover, Stacks’s allegations that the Sm iths and R icky k n o w i n g l y m i srepresented to the court that R icky was B.R.’s biological f ather certai n ly support such a claim

. Nonetheless, the chancery court dism i ssed the petition without addressing t he alleged f raud because the court concluded that t he p etition was barred by the statute o f lim i tations and that Stacks was not entitled to notic e o f t h e a d o p t ion. On appeal, the Sm i ths and Ricky f urt h e r c ontend that Stacks’s f r aud-on-the-court argum ent is “procedurally barred” because Stacks did no t c ite Mississippi Rule o f Civil Procedure 60(b)(6) in the chancery court.

6¶12. W e address t he alleged procedural bar f irst. The Sm iths and Ricky do not argue that Stacks f ailed t o allege f

raud on the court in h is petition. Indeed, Stacks’s petition very clearly and specif

ically alleged a f

r aud o n the court. Rather, the Sm iths and Ricky argue that Stacks waived this issue solely because he did not c ite Rule 60(b)(6) during t he proceedings in the chancery court. However, their argum en t i g n o r e s the well-settled principle that a court
possesses the inherent power to set aside a judgm ent based on f raud on t he court. Theref

ore, it was unnecessary f

or Stacks to cite any

particular rule in his petition. ¶13. In D oe v. Smith , 200 So. 3 d 1028 (Miss. 2 016), our Suprem e Court h eld that a f ather could bring an “independent action” to set aside an adoption that had been obtained through

a f r aud upon t he court. Id. at 1034-35 ( ¶¶23-24). In Doe , the m o ther h ad allowed her son
to be adopted by f

a lsely claim i ng in her consent to the adoption that she was u naware of the identity of the child’s nat u r a l f a ther. Id. a t 1030 (¶1). Her deception caused the court to grant the adoption. Id. W hen the biological f a ther le a r n e d o f t h e m other’s deception, he petitioned the court to set asi d e t h e a d o p t i o n based upon a f raud on the court. Id. at 1031 (¶¶6-7). The f

ather subsequently established his paternity through a DNA test, and the

m other eventually a dm itted that she knew the f ather’s identity a t the tim e of the adoption and deceived the court by claim ing otherwise. Id. at 1031-32 (¶¶8-10). Following a hearing, the chancellor set a side the adoption based on a f raud on the court. I

d. a t 1032 (¶11). On appeal, the Suprem e Court a f

f irm ed. Id. at 1033-34 ( ¶19). The Suprem e C ourt held that “an intentional f

raud aim e d solely to circum vent a n atural parent’s statutorily m andated consent
to an adoption” was exactly t he ty p e of f raud upon the court that would warrant setting aside

7a judgm ent. Id. at 1033 (¶17) ( f o otnote om itted). The C o u r t a l s o h e l d that although the
f ather was a nonparty

to the original adoption proceeding, the chancellor had t he authority

to consider his petition as an “independent action” to set aside the a doption because it had been “obtained by

a f raud on the court.” Id. at 1034-35 (¶¶23-24). ¶14. In Doe , the Court described the f ather’s “independent action” as “authorize[ d]” b y or “under” Mississippi Rule of Civil Procedure 60(b)(6), id. a t 1034 (¶¶20, 2 4), but that description is incom

plete. Rule 60(b) states in relevant part: This rule does not lim it the power of a court to e ntertain a n independent action to relieve a party f

rom a judgm ent, order, o r proceeding, o r to set aside a judgm ent f

or f raud upon the court.

. . . The procedure f or obtaining any relief f rom a judgm ent shall be by m otion a s p r escribed in these rules or b y an independent action and not otherwise.
M.R.C.P. 60(b). Our Rule 60(b) “ is very nearly i dentical” to the parallel f ederal rule. State

ex rel. Miss. Bureau of N arcotics v. One (

1) Chevrolet Nova Auto. , 573 So. 2d 7 8 7 , 789 (Miss. 1990). T h eref

ore, we ty pically “ consider as authoritative f ederal constructions” of the
f ederal rule “when determ ining what our construction of our rule ought to be.” Id. ¶15. Federal courts have consistently h eld that the parallel language of the f ederal rule “ is

not an af f irm ative grant of power but m erely allows continuation of whatever power the court would have had to entertain a n i n d e p e n d e n t action if the rule had not been adopted.” 11 Charles Alan W right & Arthur R. Miller et al., Federal Practice and Procedure § 2868, at
555 (3d ed. 2012) (em

phasis added). 5 Prior to the adoption of R u l e 60, courts already

5 A cco rd B ro w n v. E

sta t e o f Jo h n so n , 8 2 2 S o . 2 d 1 0 7 2 , 1 0 7 3 (¶4 ) (M i ss. C t. A p p . 2 0 0 2 ) (“T h e lan g u ag e o f R u l e 6 0 ( b ) d o es n o t create a r ig h t o f in d ep en d en t a ctio n to set asid e a j u d g m en t w h ere n o n e ex isted b ef o re. R a t h e r , i t s p u r

p o se i s sim

p l y t o e x p licitly ack n o w led g e th e lo n g -ex istin g rig h t o f a p arty to co l laterally

attack a v o id j u d g m en t.”). 8possessed the inherent power to s et aside a judgm ent t hat h ad been o btained by f raud upon the court. 11 W right & Miller, supra , § 2870, at 5 72; Universal Oil Prod. Co. v. Root Ref.
Co. , 3 28 U.S. 575, 580 (1946). A court’s “inherent pow e r . . . t o vacate a f raudulently obtained j udgm ent—even y ears af ter the judgm ent was e ntered—has long been recognized by the [ United States] Suprem e Court.” In re Bressman , 874 F.3d 142, 149 (3d Cir. 2017) (citing Ha z e l

-

A t l a s G lass Co. v. Hartford-Empire Co. , 322 U.S. 238, 248-49 (1944)). Indeed, that power “was f i rm ly established in English practice long bef ore t he f oundation of

our Republic.” Hazel-Atlas Glass Co. , 332 U.S. at 244. Thus, Rule 60 i s not t he source of

a c ourt’s power to set aside a judgm ent due to a f raud upon t he court but sim p ly r ecognizes the court’s independent, inherent power to grant such relief

. It f ollows that “an independent action alleging f

raud upon t he court” appeals t o t h e c o u rt’s inherent power and “is

com pletely distinct f

r om a m otion under R u l e 6 0 ( b )

. ” In r e B ressman , 874 F.3d at 149 (quoting Herring v. United States , 424 F.3d 384, 389 (3d C ir. 2 005)); see a l s o Kodekey Elecs. Inc. v. Mecha n e

x C orp. , 500 F.2d 110, 112 (10th Cir. 1974) (explaining that Rule 60(b)’s “provis i ons specif ically do n ot apply to an independent action” (quotation m ark

om itted)). In addition, “there are n o f orm al p leading requirem ents” f or “a pleading invoking the court’s inherent power to grant relief f or f raud upon the court.” United States v. Buck , 281 F.3d 1336, 1342 (10th Cir. 2002) (brackets om itted). ¶16. The Mississippi Suprem e Court h as also recognized t hat Rule 60(b) is not the source of a court’s authority to e ntertain an independent a c tion f o r r elief f rom a judgm ent obtained by f raud upon t he court. In Trim v. Trim , 33 So. 3d 471 (Miss. 2010), t he Court held that the

9intentional f iling of a substantially f

alse f inancial disclosure statem e nt i n a d ivorce case was

a f raud upon the court and warranted relief f r om the f inal j udgm e n t of d ivorce. Id. at 472-73 ( ¶ 3 )

. T he Court indicated t hat a c hancery court’s “equitable powers” authorize it to g r a n t such relief

separate and apart f

rom Rule 60(b). Id. at 477 (¶14). ¶17. Sim ilar l y , i n I

n r e E s t a t e o f Reid , 8 25 S o. 2 d 1 (Miss. 2002), the Suprem e Court recognized that “courts have the inherent power to vacate a judgm ent at a subsequent term of court when t he judgme n t i s v o i d because of f raud in its a cquisition.” I d. at 7 (¶23) (em phasis added). And in I

n re Adoption of D .C.S. Jr. , 44 So. 3d 1 006 (Miss. Ct. App. 2009), this Court stated t h a t “ t h e c h a ncellor

. . . is entrusted with t he inherent authority to vacate judgm e nts procured by a f raud upon the court.” I

d. at 1013 (¶28). ¶18. B e c a u s e t h e chancery court possessed the inherent power t o set aside a j u d g me n t obtained by a f

raud on the court, it was unnecessary f or Stacks to cite R u l e 6 0 (b)(6) as authority f or his petition. Stacks’s petition c learly alleged f raud on the court as a basis f or setting a side the adoption. That is all t hat is r equired of such a p leadi n g . S t a c k s did not waive his right to relief

just because he did not cite Rule 60(b)(6). 6 ¶19. On the m erits, we h old that the chancery court erred b y dism issing Stacks’s petition based on the statute of l im i tations. This Court has s pecif i cally r e c o g n i z e d that “the

6 T h e S m ith s’ an d R ick y ’s arg u m en t to th e co n trary r elies o n th is C o u rt’s d ecisio n in D

. C

. S

. Jr. , su

p ra . H o w ev er, th at case is in ap p o site. In D .C .S

. Jr. , th is C o u rt h e l d t h a t a p art y h a d w aiv e d an arg u m en t u n d er R u le 6 0 (b )(4 ) b y n o t citin g th e ru le i n th e ch an cery co u rt. D .C .S

. Jr. , 4 4 S o . 3 d at 1 0 1 2 (¶2 6 ). H o w ev er, th e ch a n cello r h a d co n sid ered an d rej ected th e m erits o f th e p a rty ’s claim o f a f r au d o n th e c o u rt. Id

. at 1 0 1 3 (¶2 8 ). T h is C o u rt af f irm ed , statin g th at “th e ch an cello r, w h o is en tru sted w ith th e in h eren t a u th o rity to v acate j u d g m en ts p ro cu red b y f

rau d u p o n th e co u rt n o tw ith stan d in g th e ru l es o r th e ad optio n statu te o f lim itatio n s, d eclin ed to ex ercise th at au th o rity

. ” Id

. 1 0chancellor

. . . is entrusted with the inherent a uthority to vacate judgm ents p rocured by f raud
upon the court notwithstanding

. . . t he adoption statu t e of limitations .” D .C.S. Jr. , 44 So. 3d at 1013 (¶28) (em

phasis added). 7 I n D.C.S. J r. , thi s C o u rt af

f irm ed t he chancellor’s
f inding t h a t t h ere had not been a f raud on court. Theref

o re, the six-m onth statute of
lim itations in section 9 3-1 7

- 1 5 b arred the petition to s e t aside the prior adoption. Id. at (¶¶28-29). In this case, however, Stacks’s petition clearly alleged f acts that would support

a c laim that the adoption was obtained by a f r aud upon the court. Yet, without hearing any testim o ny , the chancery c ourt d i sm issed the petition based on the statute of lim i tations. The cha ncery court e rred by dism i ssing the case without an evidentiary hearing because proof that the adoption was obtained by a f raud upon the court w ould perm it the c ourt t o set aside the judgm ent “ notwithstanding . . . the adoption statute of limitations .” Id. at (¶28) (em phasis added). Theref

ore, w e m ust re v e rse the judgm ent o f the chancery court a nd rem and f or a hearing and f

i n dings on Stacks’s claim of a f raud on the court.
II. Notice of the Adoption ¶20. In general, an action to set aside a f inal decree of adoption m ust be f i l e d w i t h i n s ix

7 S e e a lso , e.g
. , F

i n ch v
. F in ch , 1 3 7 S o . 3 d 2 2 7 , 2 3 4 (¶1 8 ) (M iss. 2 0 1 4 ) (“[ N ] o t im e co n strain ts w i l l lim it th e co u rt’s ab ility to rem ed y [ a] f rau d [ o n th e co u r

t] .”); T rim , 3 3 S o . 3 d at 4 7 3 ( ¶3 ) ( “[ T ] h ere is n o lim itatio n o f tim e restrictin g th e co u rt f ro m af f o r d in g a rem ed y [ f o r a f r au d o n th e co u rt]

. ”); S

m ith B y & T h ro u g h Y o u n g v. E sta te o f K in g , 5 0 1 S o . 2 d 1 1 2 0 , 1 1 2 2 -2 3 (M iss. 1 9 8 7 ) (h o ld in g t h a t a f in al d ecree ad

j u d icatin g h eirsh ip m ay b e set asid e b ased o n a f

rau d u p o n th e co u r

t d esp ite th e ru n n in g o f th e statu te o f lim itatio n s f o r a p etitio n to d eterm in e h eirsh ip ) ; 4 7 A m . Ju r. 2 d Ju d g m en ts § 6 6 5 , at 6 2 (2 0 1 7 ) (“C o u rts h av e h isto rically en

j o y e d th e in h eren t au th o rity t o co rrect j u d g m en ts o b tain e d b y th e c o m m issio n o f f rau d o n th e c o u rt, r eg ard les s o f o r d i n a ry p ro ced u r al b ars l ik e statu tes o f lim itatio n s o r th e tim e lim its i m

p o s ed o n m o tio n s to se t a sid e j u d g m en ts f o r f rau d , b ecau se a d ecisio n p ro d u ced b y f

rau d o n th e c o u rt is n o t i n essen ce a d e cisio n at all, an d n ev er b e co m es f in al.” (citin g U n ited S t a tes v. Willia m s , 7 9 0 F .3 d 1 0 5 9 , 1 0 7 1 (1 0 th C ir. 2 0 1 5 ))). 1 1m onths of the entry of the d e c r e e . Miss. Code Ann. § 93-17-15. However, our Suprem e

Court h as held that “jurisdictional def ects” in the adoption decree are an exception to the sixm onth statute of lim itations. In re Adoption of M.D.T. , 722 So. 2d 702, 704 (¶¶7-9) (Miss. 1998) (citing Miss. Code Ann. § § 93-17-15 & -17). The f ailure to join a p arent of the child is a jurisdictional def

ect. Id. at (¶11); Naveda v. Ahumada , 381 So. 2d 147, 147-49 (Miss. 1980). ¶21. U n d e r t h e adoption statutes, a “parent” is entitled to notice and is a necessary party
t o a n adoption proceeding. Miss. Code Ann. § 93-17-5(1)(a). However, when the Sm ith s petitioned to adopt B.R. in May 2017, S tacks had not e stablished his paternity and had not established any legal r ights with respect to B.R. For that r eason, the chancery court held that Stacks was not entitled to notice. T h e c o u r t n o t e d that B

. R

. was f ive y ears o ld, and y et Stacks had not taken any l egal action to establish his paternity

. T he court r easoned “that only the legal presum

ptive f ather, Ricky Raab, was e ntitled to notice of this adoption.” However,

we hold that the chancery court erred by rejecting Stacks’s lack-of -notice claim as a m atter of law and without a hearing. ¶22. The M ississippi Suprem e Court and the United States Suprem e Court have both stated that “ [ p]arental r ights do not spring f ull-blown f

rom the biological connection between the parent a n d child. T

hey require relationships more enduring .” Strickland v. Day , 239 So. 3d 486, 491 (¶19) (Miss. 2018) (quoting Lehr v. R o b e r tson , 463 U.S. 248, 260 (1983)). A f ather’s “biological c onnection alone is n ot enough to establish paren t a g e ” if “he f ails to establish that he has had any substantial relationship with the child.” I d.

1 2¶23. A biological f ather who has not established h is p aternity has a constitutional right to notice of an adoption proceeding if he “has attem pted to e s tablish a substantial relationship with the child.” Humphrey v. Pannell , 710 So. 2d 392, 396 ( ¶20) (Miss. 199 8 ) ; S m i t h v
. Malouf , 722 So. 2d 490, 494 (¶14) (Miss. 1998); accord In re Adoption o f A.S.E.L. , 111 So. 3d 1243, 1248 ( ¶22) (Miss. Ct. App. 2013). The converse is also true: a biol o gical f ather who m a k e s n o e f

f o r t to establish paternity or a substantial relationship with his child does not have a constitutional right to notice of t he f iling of an adoption p etition. A .S.E.L. , 111
So. 3d at 1249 (¶25). Thus, a chancery court’s “f inding” t h a t a b iological f ather f ailed to establish his paterni t y or a s ubstantial relationship with the child prior to the adoption “negates [ the f

ather’s] right to constitutional protection of his relationship with [ the child].” Id. And, under those circum stances, the lack of notice to t he f ather does not, in a nd of itself , require the adoption to be set aside. Id. 8

8 Ju d g e G reen lee’s sep arate o p in io n a r g u es th at S t ack s w as en titled to n o tice, as a m atter o f law , b ased s o lely o n h is b io lo g i cal co n n ectio n to B .R

. T h e sep arate o p in io n relies o n a 2 0 1 6 am en d m en t to sectio n 9 3 -1 7 -5 th at d eleted th e ru l e th at “[ i] n th e c ase o f a ch ild b o rn o u t o f w e d lo ck , th e f ath er sh all n o t h av e a rig h t to o b j ect t o an ad o p t io n u n l ess h e h as d em o n strated , w ith in th e p erio d en d in g th irty (3 0 ) d ay s af ter th e b irth o f th e c h ild , a f u ll co m m itm en t to t h e resp o n sib i lities o f p a ren t h o o d .” M iss. C o d e A n n . § 9 3 -1 7 -5 (3 ) ( R e v . 2 0 1 3 ); 2 0 1 6 M i s s . L a w s ch

. 4 3 1 , § 1 9 (H

. B

. 1 2 4 0 ). H o w ev er, in d eletin g th is sp ecif ic req u irem en t u n d er f

o rm er su b sectio n (3 ), th e L eg islatu re d id n o t am en d t h e relev an t n o tice req u irem en ts o f su b sectio n (1 ). M o reo v er, th ere is n o th in g i n th e am en d m e n t to su g g est t h at th e L eg islatu r e in ten d ed to im p o s e a n ew req u irem en t o f n o tice to a b io lo g ical f

ath er w h o h as n ev er estab l ish ed p atern ity o r an y su b stan tial relatio n sh ip w ith th e c h i l d

. S u ch an in terp retatio n o f th e statu te w o u ld leav e a n ad o p t io n d ecree p erp etu ally v u l n e r a b le to ch allen g e b y a p rev io u s ly u n k n o w n b io lo g ical f ath er. We d eclin e to in terp r et th e statu te to im p o s e su ch an ex trem e an d , in so m e c ases, p r actically im p o ssib le n o tice req u irem en t. R a th er, w e s i mp ly in terp ret th e statu te in a m an n e r co n sisten t w ith th e lo n g stan d i n g co n stitu t io n al req u irem en t o f n o tice to a b io lo g ical f a th er w h o h as estab l ish ed a su b stan tial relatio n s h ip w ith th e ch ild p rio r to th e ad o p t io n . 1 3¶24. In the present c ase, S tacks did not take any legal a ction to establish his paternity prior

to the adoption. In addition, the parties dispute w hether Stacks had e stablished a s u bstantial relationship wi t h B

. R

. S t acks alleges that he “ r aised” B.R. to the age of f our (until his probation was revoked), that B.R. knew him as her f ather, and t hat he h a d a s u b s t antial relationship with h er. Stacks also alleges that the Sm iths knew t hat he was B.R.’s f ather and knew that h e h a d a relationship with her. However, the S m iths have denied Stacks’s allegations. The chancery court did not hear testim ony , consider any evidence, o r m ake any f indings concerning this f

actual dispute. I n stead, the chancery court ruled that Stacks was

not entitled to notice a s a m atter of law because h e f ailed to take legal action to establish his paternity prior to the adoption. ¶25. W e hold that the chancery court erred by dism i ssing the p etition as a m atter of law. The chancery court was required t o h old a hearing and m ake f indings on this issue because Stacks had a constitutional right to notice if he had established a substantial r elationship with
B.R. prior to the f

iling o f t h e a doption petition. If he had established such a r elationship, then t he f ailure to give him notice and join him as a party to t h e a d o p t i o n p r o ceeding is a jurisdictional def

ect, and the resulting adoption decree m ust b e set aside n otwithstanding the

statute of lim itations. There f o r e , w e reverse and rem and the case f or a hearing to address Stacks’s claim

that he was entitled to notice of the adoption.
CONCLUSION ¶26. The judgm ent of the chancery court is reversed. The case is rem anded f or a hearing

t o d e term ine whether the challenged a doption decree m ust be set aside (1) because it w a s

1 4obtained by a f raud on t he court or (2) bec a u s e S t a c k s had established a s u bstantial relationship with B.R. such that he had a constitutional right to notice. ¶27. REVERSED AND REMANDED.
WESTBROOK S , T I NDELL, McCARTY AND C. W ILSON, JJ., CONCUR. McDO N A L D , J., C ONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN O PINION. GREENLEE, J., CONCURS IN P A R T AND DISSENTS IN PART WITH S EPARATE WRITTEN OPINION, JOINED IN PART BY WESTBROOKS AND M cDON A L D , JJ. CARLTON, P .J., DISSENTS WITH SEPARATE WRITTEN O PINION, JOINED BY BARNES, C.J., AND LAWRENCE, J. GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART: ¶28. I concur i n part and dissent in part. I concur that the judgm ent of the chancery court should be reversed but f

or dif f erent reasons than the m ajority

. I would f ind that Stacks was procedurally b arred f

rom asserting a c laim that the adoption should be set aside because it

was allegedly obtained b y a f raud on the court. But I would also reverse the c h ancery court’s dism issal of Stacks’s notice-based claim f o r f u rther proceedings because, as B.R.’s natural
f ather, Stacks was entitled to notice of the adoption proceeding. ¶29. As discussed by the m ajority , the S m iths’ p etition to adopt B.R. was granted on June 13, 2017. On Decem

ber 20, 2017, Stacks f

iled a petition to disestablish Ricky ’s paternity , to establish h is paternity , to determ ine custody , to set aside the a d option, and f o r other relief

. In the petition, Stacks a lleged that he was B.R.’s natural f ather, h e did not receive notice of the adoption proceeding, and the adoption was granted based on f raud. In their response, the
Sm i t h s a n d Ricky a dm itted that Stacks was not served with notice o f the adoption proceedings. Subsequently , in M arch 2018, S tacks f iled a m otion f

or paternity t esting, and

1 5the results showed a 99.99% probability that h e was B.R.’s natural f ather. Nevertheless, the chancery court dism issed Stacks’s petition. ¶30. On appeal, S t a c k s c l a i ms the chancellor should have considered his petition to set aside the adoption under Rule 60(b)(6). Stacks argues that the Appellees com m i tted f raud by concealing his i dentity f rom the chancery c o urt. A nd in support of his argum e nt, he points out that he did not receive notice of the adoption proceedings. ¶31. “Sec t i o n s ( 1 ) t o ( 5 ) of Rule 60(b) provide specif ic instances when a party m ay be relieved of a judgm ent or o rder.” 2 Jef f rey Jackson, D onald E. Cam pbel l & Justin L. Matheny , Encyclopedia of M ississippi Law § 22:15, W estlaw (database updated May 2019).
“For t hose situations that do not f all under one of the e num e rated categories of Rule 60(b)(1)

t o (5), Rule 6 0(b)(6) allows a j udgm ent or order to be set aside f or ‘ any other r e a s o n justif y ing relief f

rom the judgm ent.’” Id

. A nd our s uprem e court has held th a t a Rule 60(b)(6) m otion m ay be f iled as an “independent action.” Doe v
. S m i t h , 2 0 0 S o. 3d 1028, 1030, 1 034 (¶¶2, 2 0) (Miss. 2016) (citi n g M

. R.C.P. 60(b)(6)); see also 2 Jackson &
Cam pbell et al., supra , § 22:16. ¶32. The Sm iths a nd R icky assert that Stacks’s claim is procedurally barred b ecause it was
not raised in the chancery cou r t

. T h e y p o i n t out that “[ Rule] 6 0(b)(6) was not

. . . cited
any where in [ Stacks’s] pleadings. Nor did he bring up or a rgue [ R u l e ] 6 0 ( b ) ( 6) at any tim e. . . .” ¶33. In a sim ilar case, an appellant argued t hat the chancellor should have considered the

c om plaint under Rule 60(b)(4). In re Adoption of D.C.S. Jr. , 44 S o. 3d 1006, 1012 (¶24 )

1 6(Miss. Ct. App. 2009). Under that rule, “ a m o vant can bring a m o tion to set aside a j udgm ent

when that judgm ent is void.” Id

. However, t his Court n oted t hat the appellant “did not claim Rule 60(b)(4) as the basis of its com plaint to set aside the adoption; it cited only Rule 24.” Id

. at (¶26). Theref

o re , t h is Court held that the appellant’s argum ent w as “procedurally barred because i t was never raised in the [ chancery ] c o urt f or the chancellor to consider.” Id

. (citing Anderson v. State , 904 S o. 2 d 973, 978 (¶¶16-17) (Miss. 2004)). I would likewise
f ind that Stacks’s Rule 60(b) argum ent is procedurally barred. ¶34. However, af

t er a de novo review, Stacks w as entitled to relief under Mississippi Code Annotated section 93-17-17 (Rev. 2018). 9 Pursuant to this statute, an adoption m ay be set aside f or “jurisdictional def

ects” and “f

or f ai lure t o f

ile a nd prosecute

. . . under the provisions of [ Title 93, Chapter 17 of the Mississippi Code Annotated].” Miss. Code Ann. § 93-17-17. ¶35. Mississippi Code Annotated section 93-17

- 8 s e t s fo r t h the p rocedure that the chancery

court m ust f ollow when an adoption b ecom es a contested m atter. This section provides that the court “[ s]hall determ ine f irst whether or not the objecting parent is entitled t o so object under the criteria of section 93-17-7

. . . . ” Miss. Code Ann. § 93-17-8(1)(c) (Re v . 2 0 1 8 )

. According to section 93-17-7:
No person, whether claim ing t o be t he parent o f the child o r not, has standing to object to the adoption if : (a) A f inal judgm ent f

or adoption that com

ports with all applicable state

9 “Wh en rev i ew i n g a trial c o u rt’s g ran t

. . . o f a m o tio n to d ism iss, th is C o u rt ap p lies a d e n o v o s t a n d a r d o f r ev iew .” B rya n t v. D en t , 2 7 0 S o . 3 d 9 7 6 , 9 7 8 (¶8 ) (M iss. C t. A p p . 2 0 1 8 ). 1 7and f ederal laws has been entered by a court; and (b) Notice to the parties of t he action, whether known o r unknown, has been made in compliance with [ s ] ection 93-17-5. Miss. C ode Ann. § 93-17-7(2) (Rev. 2018) (em phasis added). Section 93-17-5 provides that “[ t]he parents” s hall be m ade parties to the adoption proceeding. M iss. Code Ann. § 93-17- 5(1)(a) (Rev. 2018). Accordingly , Stacks was entitled to notice. ¶36. Such a decision is consistent with Mississippi law. In Smith v
. M alouf , our suprem e
court h eld that “a natural unw ed f ather m ay , in c ertain circum stances, h ave a right to be notif ied or to withhold his consent to a n a d o p t ion.” I n re Adoption of A.S.E.L. , 111 So. 3d 1243, 1248 (¶23) (Miss. C t. App. 2013) (citing Smith v. Malouf , 722 So. 2d 4 90, 497 (¶30) (Miss. 1998)). “The Mississippi Legislature thereaf ter a m e n d e d s e c t i o n 9 3

- 1 7

- 5 ( 3 ) , allowing

a f ather to have the right to object to an adoption if h e has dem onstrated ‘a f ull com m itm ent
to t he responsibilities o f parenthood’ within thirty d ay s af te r t h e b i rth of the child.” Id

. (citing Smith , 7 22 So. 2d at 4 94 n.1). But in 2016, the Legislature am ended s ection 93-17-5 again, rem oving the “f

ull com m itm e nt t o the responsibilities of parenthood” language. Today , section 93-17-5 states, without qualif ication, that “the parents” shall be m ade parties to the adoption proceeding. Stacks is B.R.’s natural parent. ¶37. The Sm iths and Ricky claim ed and the chancellor f ound that Stacks’s petition to set

a s i d e t h e adoption was b arred by the statute of lim itations under section 93-17-15. Th i s section p rovides: “No action shall be brought to set as i d e any f inal decree of adoption, whether granted upon consent or persona l p r ocess o r on process by publication, except within six (6) m onths o f the entry thereof .” Miss. Code A nn. § 9 3-17-15. However, this section is

1 8inapplicable because Stacks did not consent to the adoption, nor was he served with process.

¶38. Because Stacks was not notif ied of t he a d o p t i o n p r o c e edings, I would reverse the judgm ent of the chancery court f or a determ ination o f the c hild’s custody “in accord with the best interests of the child and t he rights of t h e p a rties

. . . .” Miss. Code Ann. § 93-17- 8(1)(c). At that tim e, t he c hancellor could consider S tacks’s crim inal history and the f act that he w aited alm ost six y ears to e stablish paternity

. In t he event the chancellor f inds that custody with Stacks is in the child’s best interests, the chancery court could also order that Stacks reim

b urs e t h e a d o pting parents reasonable support f or the child. Miss. Code Ann. § 93-17-8(7). WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION IN PART. CARLTON, P.J., DISSENTING: ¶39. I respectf

u lly d issent f

rom the m aj o r i t y ’ s o p i n i o n . T h e m ajority f inds that the chancellor was required to hold a hearing and m ake f indings of

f act on Stacks’s claim

that he was e ntitled to notice of the adoption and accordingly reverses and rem ands this m atter f o r a hearing. However, as f ound by t he chancellor, Stacks was n either the l e g a l n o r t h e
presum ptive f a ther and was not entitled to notice under section 93-17-5. I agree with the chancellor’s f

inding that Stacks was not entitled to notice, and I would theref ore af f irm the chancery court’s judgm ent dism issing Stacks’s petition to set aside the adoption. ¶40. The m ajority also f inds that Stacks’s Rule 60(b) argum ent is not procedurally barred.
I disagree. I c oncur with the determ ination set f orth in Judge Gr e e n l e e ’ s s e p arate opinion
f inding that Stacks’s Rule 60(b) argum ent is procedurally barred.

1 9¶41. W h en reviewing a trial court’s grant of a m otion to dism iss, “ [ t]his Court em ploy s a de novo sta n d a r d of review.” Hamilton v. Y oung , 213 S o. 3 d 69, 78 ( ¶22) (Miss. 2017). “Likewise, it uses t he sam e standard when determ ining questions o f l a w i n c l uding lim itations issues, tim eliness, and standing.” Id

. ¶42. T h i s Court has held that “generally [ ,] the setting aside of a n a d o p t i o n d e c r e e i s disf avored in Mississippi.” In re A doption of A.S.E.L. , 111 So. 3 d 1243, 1248 (¶21) (Miss.
Ct. App. 2013). “There is a strong public policy d eclaration in M ississippi' s adoption statutes f or the f inality of adoption decrees.” Id

. ¶43. In this case, the f

inal judgm ent of adoption was e n tered on J une 13, 2017. Stacks f iled his petition to set aside the adoption o n D e c em ber 20, 2017. The chancellor f ound that Stacks’s petition to s et aside the a d o ption was f i led o utside of t he six-m o nth statute of
lim itations under M ississippi Code Annotated section 9 3-17-15. Section 9 3

- 17-15 states that “[ n]o action shall be b rought to set aside any f inal d ecree of adoption, whether g ranted upon
consent or personal process or on p rocess by publication, e xcept within six (6) m onths of the entry thereof

.” The chancellor also f ound that Stacks “ f

ailed to show a n y s u

bstantive evidence of a j u r isdictional def ect that would negate” the six-m onth tim e bar set f orth in section 93-17-15. The chancery court theref o r e g r a n ted the S m iths’ m o tion t o dism iss Stacks’s petition to set aside the adoption. Stacks appealed. ¶44. Section 93-17-8(1)(c) provides that w hen “an a d option b ecom e s a contested m atter,” the chancellor m

ust f irst determ ine “whether o r n o t t h e o bjecting parent is entitled t o so object under the criteria of [ s]ection 93-17-7.” Section 93-17-7 addresses standing to object

2 0to an adoption. Subsection (2)(a)-(b) provides:

No person, whether claim ing t o be t he parent o f the child o r not, has standing to object to the adoption if : (a) A f

inal judgm ent f

or a doption that c om

ports with all a

pplicable state and f

ederal laws has been entered by a court; and (b) Notice to the parties of the action, whether known or unknown, has been m ade in com

pliance with Section 93-17-5. Miss. Code Ann. § 93-17-7(2)(a)-(b). In the p resent case, the chancell o r determ ined the

r e quirem ents o f section 93-17-7(2)(a)-(b) were m et, a n d theref ore Stacks did n o t h a v e standing to object to the adoption. ¶45. In reviewing whether Stacks was e ntitled to notice of the adoption proceeding in this

case, I recognize t hat t he provision of section 93-17-5 r e l e v a n t t o the f acts of this appeal provides t he f

ollowing language regarding the necessary parties to an adoption proceeding: (1) T here shall b e m ade parties t o the p roceeding by process or by the f iling therein of a consent to the adoption p r o posed in the petition, which consent shall be d uly s worn to or a cknowledged and executed only b y t h e f ollowing persons, but not bef

ore seventy -two (72) hours af t er the birth of

the child: (a) The parents, or parent, i f only o ne (1) parent, though either be under the age of

twenty

- one (21) y ears . . . . ¶46. The chancellor adm i tted that Stacks w a s n o t s e r v e d w i t h p r o c e ss in this case. However, the chancellor determ ined that “[ t]he legal a nd p resum ptive f ather of the child was the m other’s h usband[ ,] R i c k y R a a b

. . . .” The chancellor explained that “[ Ricky ] signed under oath a docum ent entitled ‘Volu n tary Release o f All Parental R ights and Consent to Adoption’ on M ay 19, 2 017, that was f iled in the adoption proceeding. I n t h a t s a m e docum e n t , R i c k y alleges t hat he is ‘the legal and biological f ather of [ B.R.].’” The

2 1chancellor theref ore f ound that p ursuant to section 9 3-17-5, “ only the legal and p resum ptive
f ather, Ricky

Raab, was entitled to notice of this adoption.” ¶47. The record f

urther ref lects that Stacks did not establish his paternity via a D NA test until n e arly nine m onths af ter t he f inal judgm ent of adoption was entered. As s tated, the f inal judgm ent of adoption was entered on June 13, 2017. On March 7, 2018, Stacks petitioned the chancery court to order a D N A t e s t to d eterm ine Stacks’s paternity of B.R. On March 27, 2018, the DNA results were f iled in the chancery court and ref lected that Stacks was the biological f

a ther of B.R. ¶48. In its order dism issing Stacks’s petition, the chancery court acknowledged that under Mississippi Code Annotated section 9 3-17-17, “no adoption p roceedings shall b e perm itted

to b e set aside except f

or jurisdictional def

ects and f o r f a ilure to f i le and prosecute the sam e under the provisions of this chapter.” The chancellor f o und that b ecau s e o n l y R i cky was entitled to notice of the a doption, Stacks “f ailed to show a n y s u bstantive evidence of a jurisdictional def

ect” t hat would require the chancery court to set aside the adoption proceeding. ¶49. The chancellor f

urther observed:
From the tim e o f [ B.R.’s] birth until this c ase began, Mississippi had available to [ Stacks] m

u ltiple statutory schem es whereby h e could have a sserted his legal rights with respect t o t h i s c hild. For exam ple, our adoption law under section 93-17-6 provides: “ (1) Any person who would be a necessary party to an adoption proceeding under this chapter and any p erson a lleged or claim ing to be the f

a ther o f a child bor n out o f wedlock who is proposed f o r adoption or who has been determ ined to be such by any adm inistrative o f judicial procedure ( the “alleged f

ather”) m ay f

ile a petition f

or determ ination of rights as a prelim inary pleading to the petition f or adoption in any court which w ould have jurisdiction a nd venue of an adoption proceeding

. . . ; (3) The sole m atter

2 2f

or determ ination under a p etition f or determ i nation of rights i s w hether the alleged f ather is the natural f

a t h e r of t he child based on Mississippi law governing paternity or other relevant evidence.” There was also available to [ Stacks] the r ight to f

ile a p a t e r nity a c tion under M iss[ issippi] Code Anno[ t ated] sections 93-9-1 and f ollowing which is the Mississippi Unif orm Law on Paternity

. The chancellor stated that “[ Stacks] did not avail him self of either procedure.” ¶50. U p o n r e v i ew, I f

ind that under section 93-17-5, Stacks w as not entitled to re c e i v e notice of t he adoption proceedings. Stacks theref ore lacks standing to object to the adoption proceedings. Accordingly , I would af f irm the chancery c o u

r t ’ s j u d g m e nt d ism issing Stacks’s petition to set aside the adoption. BARNES, C.J., AND LAWRENCE, J., JOIN THIS OPINION.

2 3