IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00969-COA IN THE MATTER OF THE ADOPTION OF THE MINOR CHILD DESCRIBED IN THE PETITION: J.A.G. AND WIFE, S.G. APPELLANTS

v. C.T. AND B.T. APPELLEES
DATE OF JUDGMENT: 06/06/2016 TRIAL JUDGE: HON. JAMES B. PERSONS COURT FROM W HICH APPEALED: HANCOCK COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: OLIVER E. DIAZ JR. DAVID NEIL MCCARTY ATTORNEY FOR APPELLEES: GAIL D. NICHOLSON NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 11/14/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. This case stem s f

rom a contested adoption s uit f i led in Hancock C ounty C hancery Court b etween m aternal grandparents, J.A.G. 1 and S.G. (“grandparents”), and f oster parents, B.T. and C.T. ( “f

os t e r parents”). The parental rights of G.L.’s n atural parents were
term inated by judgm ent of the Hancock County Chancery Court f ollowi n g an order f

rom H a n c o c k County Youth Court recom m ending term ination and a f inding that the m inor c h i l d ’ s best interest would be served by adoption. Subsequently , the g randparents f iled a com plaint

1 To protect the m inor child’s conf identiality , we w ill ref

er t o h e r a nd the parties throughout this opinion by their initials.f

or adoption, a nd the f

oster p arents f

iled a m otion f

or l eave to intervene and an intervenor’s petition f o r a d o p t i on of G.L. On June 21, 2016, the chancery c ourt granted t he f oster parents’ petition to a dopt G .L. T he grandparents appeal. Af t er our r eview of the record, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. G.L., a m inor f

em ale child, was born to T .G. (m other) and A.H. (f ather) on June 21, 2012. T.G. and A.H. were living i n a FEMA trailer with A .H.’s m other, M .H. (paternal grandm other), in Picay

une, Mississippi. ¶3. G.L. was rem oved f rom this hom e and placed in a f oster hom e f

rom January 14, 2013, throu g h February 5, 2013, af ter T.G., A.H., and M .H. were f ound unconscious f

rom ingesting

or taking oxy c odone, leaving G.L. alone in the hom e without supervision. Later in February 2013, G.L. was tem

porarily placed with her grandparents. G.L. stay e d with her grandparents f or a while, because no one else in the grandparents’ f am ily could take care of

G.L. ¶4. The f

oster parents presented testim ony that J .A.G. approached B.T. a t work regarding taking care of G.L. The grandparents of G.L. and the f oster parents were close f riends, and the grandparents conceded that they were glad that som eone they k new could becom e f

oster parents f or G.L. In July 2013, G.L. began s p e n d i ng the night with B.T. and C.T. The grandparents t estif

ied that d uring this tim e, t he f

o ster p arents expressed interest in becom ing G.L.’s f oster parents. However, according to the grandparents, perm a n ent reunif ication of G.L. with her m other was alway s the plan.

2¶5. B.T. and C.T. f iled a Resource Fam ily Application a nd com p leted the steps required by the Departm ent of Hum an Services (“DHS”) to becom e licensed f oster parents. J.A.G. and S .G. testif

ied that they did not becom e licensed f oster parents, because t hey f elt it would be an incentive f

or their daughter to overcom e her drug addiction. ¶6. Dana Spiers, w ho w as a f am ily -protection specialist em ploy ed with D H S i n 2013, testif i ed that S.G. stated that she and her husband were not i nterested in becom ing licensed f oster parents, because they had raised other chi l d ren and did not want t o raise any m ore. She also testif

ied that S. G

. s t a ted that her o lder daughter, living in Louisiana, d ecided she could not handle raising G .L. F urther, Spier s testif ied that S.G. stated that she knew

som eone f

rom the com m

unity that would adopt G.L., because she c ould n ot take care of G.L. on a long-term

basis. ¶7. Tequila Hall, another f am ily -protection specialist f or Hancock County D HS in 2013, testif i ed that S.G. told her t hat she and her husband were not interested in becom ing licensed f oster parents, b ecause they f ound f am ily f r iends willing to adopt G .L. H o w e v er, S.G. denied she m ade these s tatem e nts, and denied that s he did not want to keep G.L. long-term

. ¶8. Subsequently , G.L. perm anently m oved in with her f oster parents in October 2013. During that tim e, the grandparents continued to visit G.L. A l s o d u r i n g that tim e, G.L.’s

m other, T.G., m oved back in with the grandparents, and visitation with G.L. becam e m ore dif f icult. However, T.G. b egan using drugs again and eventually reentered a rehabilitation
center.

3¶9. In A ugust 2014, the grandparents f iled a petition f

o r adoption i n t he Chancery Court of Pearl River County

. They a s s e r t e d that they o btained a l awy er and f iled a petition f

or adoption of G.L. once they r ealized that T.G. would not com ply with the orders f

rom DHS
to reunite with G.L. H owever, their petition was denied f or lack of proper venue. 2 C.T. and J.A.G. testif

ied that they had engaged in a heated exchange af ter s he conf

ronted S.G. regarding their petition f o r th e a d o p t i o n of G.L. The grandparents testif ied that their relationship with the f

oster parents becam e strained af ter the conf

rontation, and they had to obtain an attorney

to set visitation schedules. ¶10. In Novem

ber 2014, the grandparent s f i l e d a p etition f

or custody , term ination of
p a r e n tal rights, and adoption of G.L. in t he Chancery Court of Hancock County

. I n Decem ber 2014, the f

oster p arents f

iled a m otion f

or leave to intervene and an intervenor’s petition f or adoption. Their am ended petition f or the adoption of G.L. was f i led in July 2015. ¶11. T.G. and A.H.’s p a rental rights were term inated, and R alph Lee Price III (“ P r i c e ”) was appointed as g uardian ad litem (“GAL”). The grandparents and f o ster pare n t s presented evidence, and the c hancellor heard the testim ony f rom Price regarding h is recom m endations f or the a doption of G.L. First, Price r e c o mme n d e d t hat t he f oster parents’ petition f

or adoption of G.L. be approved. Second, Price recom m ended that the grandparents and f oster parents creat e a visitation schedule, so that the grandparents could r em ain in G.L.’s lif e.

2 The grandparents and the f oster parents live i n Pearl River County ; however, venue was proper in the Hancock County Chancery Court.

4Price based his r ecom m endation on his extensive review and investigatio n o f G

. L .’s f ile, which included interviews of both parties and visits to both residences. ¶12. Using t h e Albright 3 f actors, the totality o f the circum stances, and considering the best interest of G.L., the chancellor granted the f o s t e r p a r e n t s’ petition to adopt G.L. The chancellor also strongly recom m ended that the f oster p arents allow the g randparents to visit G. L

. , e v e n though the court was without a u thority to r equire the f

oster p arents to perm it visitation. ¶13. The g randparents contend that the chancellor erred i n grantin g t h e f o s ter parents’ petitio n f o r adoption and challenge the chancellor’s analy sis a nd application of certain Albright f actors. Accordingly , we will only address the f actors and issues the grandparents brought bef

o re this Court. STANDARD OF REVIEW ¶14. “In a case disputing child c u s t ody , the chancellor’s f indings will not be reversed unless m anif

estly wrong o r c learly erroneous, or the proper legal s tandard w as not applied.”
In re N.B. , 1 3 5 S o. 3d 220, 223 (¶9) (Miss. Ct. App. 2014) (quoting M abus v. Mabus , 847 So. 2d 815, 818 (¶8) (Miss. 2003)). Furtherm ore, “[ t he appellate court] will af f irm the decree if the record shows any ground u pon which the d ecision m ay be justif i ed.” Id

. (citation and quotation m arks om itted). DISCUSSION

3 Albright v. Albright , 437 So. 2d 1003 (Miss. 1983). 5I. Whether the chancellor erred in the “em otional ties” analy s is

.

¶15. The chancellor com pleted an extensive analy s i s o f the Albright f actors to determ ine the best interest of

G.L. In determ ining the best i nterest of the child, the f ollowing f

actors should be considered: Age, health, and sex of the child; a d eterm ination of t he party that has h ad the continuity of c are p rior to t he separation; w h ich has t he best parentin g s k i l l s and which has the willingness and capacity to provide prim ary child care; the em ploy m ent o f each party and responsibilities of that em ploy m ent; phy sical and m e ntal health and age of the parties; e m otional ties with the c hild; m oral f itness of parties; the hom e, school and com m unity record of the child; the pref erenc e of t he child at t he age suf f icient to express a pref

erence by l aw; stability of hom e environm ent and em ploy m e n t of each party [ ;] and other relevant f actors. In re N.B. , 135 So. 3d at 224 (¶12) (quoting Albright , 437 So. 2d at 1005). ¶16. The grandparents a ssert that the chancellor did not honor their e m otional ties with G.L. The grandparents f

urther a ssert that the chancellor d id not m ention the “power of their f a mi lial bond.” W e disagree. The f ollowing is an excerpt f

rom the chancello r ’ s f

i n a l judgm ent: “W h ile t his C o u r t recognizes t he [ grandparents’] b iological f am ily ties with [ G.L.] and i s cognizant that kinship m ay be a f ac tor f or consideration, t here is no rule pref erring a third party

based on the degree of

kinship.” ¶17. W e are of the opinion that the chancellor a d e q u a t ely addressed t he g randparents’ relationship as G.L.’s biological m aternal grandparents. W e note that the g randparents’ kinship to G.L. d o es not require that they are g iven a pref erence f or custodial or adopti on purposes. The grandparents are the ma t e r n a l grandparents of G .L.—not her biological

6parents. T his Court has previously held that “ w e are aware of no hard and f ast r ule that gives pref erence i n a c u s t o d y d i spute such as this to any particular litigant based solely on the degree of kinship.” Loomis v. B ugg , 872 S o. 2d 6 94, 6 98 (¶17) (Miss. Ct. App. 2004). Theref ore, this issue is without m erit. ¶18. During oral argum ent, t he grandparents a sserted that they had constitutional rights as blood relatives in an adoption m atter and cited M oore v
. City of East Cleveland, Ohio , 431 U.S. 494 (1977). However, t hey did not p resent this argum ent in their brief bef ore this Court, and so we cannot m a ke this determ ination regarding the constitutional rights of grandparents in this adoption m atter even though parental rights h ave been t erm inated. This issue is not properly bef ore this Court.
II. Whether the chancellor erred in the “parenting skills” analy sis. ¶19. The grandpare n t s assert that they were punished by the c h ancellor, because they worried that their l ong-term care of G.L. w ould disrupt their daughter’s recovery f rom drug abuse. As a result, they argue that the “parenting skills” analy s is of t he Albright f a ctors was incorrectly

weighed against them

. W e disagree. ¶20. The c hancellor discussed the grandparents’ de c i s i o n d e c l i n i n g t o b e c o m e G.L.’s f oster parents. They asserted that they m a de the d ecision b ecause they t hou g h t it would be a disincentive to t h eir d aughter’s rehabilitation. However, we f ind nothing i n the record to ref lect that the chancellor abused his discretion by discussing their support of t heir daughter. ¶21. The g randparents testif ied that their daughter would com e t o stay with them af ter her

7stints in rehabilitation centers. W e note that the c hancellor f ound the grandparents’ daughter

an issue of particular c oncern. The chancellor was concerned t h a t the biological m other could rem ain an integral part of G.L.’s lif e if they were awarded custody

. ¶22. I n In re N.B. , 135 S o. 3d at 226 (¶25), this C ourt held: “[ W ]e do not f ind that t h e ch a n c e l l o r erred in considering the relationship the parties h ad w ith their children, current

or p r ospective, when reconsidering t heir p arenting skills.” In re N.B. stem m ed f rom a contested adoption suit f iled in Prenti s s County Chancery Court between paternal grandparents and paternal great-grandparents on behalf of b iological mi n o r twins. Id

. at 221-22 (¶1). ¶23. Accordingly , we f ind this issue to be without m erit.
III. Whether t he Albright f actors negatively portray e d t h e grandparents. ¶24. The grandparents assert that the chancellor portray ed their f am ily in a negative light while analy

zing f our of the other Albright f

actors: “the phy sical and m e ntal health and age of the parents,” “ age, heal t h , a n d sex of the child,” “em ploy m ent o f the parents,” and “stability of the hom e.” A. The Phy sical and Mental Health and Age of the Parties ¶25. The grandparents contend that the chancellor erred i n not f inding that their phy sical and m ental health and age should have been weighed equally with that of the f oster parents. They m aintain that no e vidence was presented that their age incapacitated them f rom being parents.

8¶26. In support of their a ssertion, the grandpar e n t s r ef erence that there was no evidence presented f

or the chancellor to weigh t h i s f a c t o r in f avor of the f

oster parents. In f

act, the chancellor noted that all p arties were in good phy sical and m ental shape. The chancellor also noted that C.T. was thirty -f our y ears old, a nd B.T. was thirty -eight y ears old at the tim e, and that they were nonsm okers. The f oster parents also passed their m edical evaluation by the Mississippi Departm e nt of Health prior to G.L.’s placem ent in their hom e. ¶27. Further, the chancellor discussed that J.A.G. w as f o rty -nine y ears of age, and S.G. was f orty -eight y ears of age at t he tim e. There was e v i d e n c e p r esented t hat they were both

sm okers; however, they avoided sm oking in t heir hom e s and autom obiles. Alt h o u g h the

c hancellor stated that the f oster p arents’ y o unger ages m ade them m o re c om patible w i t h raising a y oung child, h e c oncluded that t he f a c tor weighed in f

avor of the f

oster parents, because they were nonsm o kers. A t t r i a l , testim ony was presented that G.L. suf f ers f rom asthm a and uses an inhaler regularly

. ¶28. The grandparents assert t hat there was no evidence p resented that G.L. had ever had

an a sthm a attack as a result of their sm oking. However, the chancellor’s discussion of G.L.’s asthm a and the sm oking habits of the g randparents is not a n abuse of discretion. Moreover, this Court has upheld a chancellor’s f indings where sm o king was considered in a n Albright

f actor analy sis. See Davis v. Stephens , 85 So. 3d 943, 950 (¶31) (Miss. C t. A pp. 2012); Love
v. Love , 74 So. 3d 928, 934 (¶25) (Miss. Ct. App. 2011). ¶29. Theref

ore, we f ind no abu s e of discretion. W e agree with the chancellor’s analy sis

9of this f

actor. F urtherm ore, this Court h as previously h e l d t h a t “the chancellor has the

u ltim ate discretion to weigh t he evidence the way she s ees f it i n determ ining wh e r e t h e child’s best interest lies.” In re N.B., 135 So. 3d at 227 (¶33).

B. Age, Health, and Sex of the Child ¶30. The grandparents contend that t he chancellor erred in f inding that the age, health, and

s e x o f G.L. w eighed in f avor of the f

o ster parents. In support o f their argum ent, the grandparents argue th a t nothing in the record described how they c ould not provide f or a child G.L.’s age, and that the f acts indicate they had been her o nly parents f or the better part of a y ear when she was very little. ¶31. Evidence at trial revealed that G.L. was t h r e e y ears of age at the tim e . She was generally in good health; however, s h e occasionally struggled w ith asthm a and used an inhaler. The chancellor noted that the f oster parents have two y oung sons, ages eleven and

seven, who reside at the hom e where G.L. has lived f or the m ajority

of her lif e. The f oster parents testif

ied that their sons were h o n o r - r o l l s t udents who were i nvolved in s ports and weekly events at church. Additionally , the f oster parents testif

ied that they

take their sons
to weekly practic e s . G

. L

. takes gy m nastics and ballet classes, which involve weekly rehearsals. The grandparents’ y oungest child was nineteen y ears of age at t he tim e of trial. There was no evidence to suggest that the grandparents were b usy w ith activities with their
y oungest chil d

. Theref

ore, the chancellor f

ound that t he f

o ster parents led a lif

esty le conducive to successf

u l parenting of y ounger c h i l d ren and concluded t hat the adoptive

10parents’ lives were centered around rearing children.

¶32. Accordingly , we f

ind there is credible evidence to support the chancellor’s decision, and this issue is m eritless.

C. Em ploy m ent of the Parents ¶33. The g r a

n d p arents a ssert that the chancellor i ncorrectly discounted an actual advantage that should have been awarded to them

. T hey argue that t he f act t hat S.G. was a hom em aker should have weighed in their f avor, because she could have given f ull-tim e c a re to G.L. ¶34. In the chancellor’s analy sis, he stated that S.G. did not work outside t he hom e, and also acknowledged that J.A.G. was a s enior electrician, working approxim ately f orty hours

a w eek (Monday through Thursday ). The chancellor also noted that B.T. h ad b een em ploy ed f or the past eight y ears a t Air Products & C hem icals, and C.T. had m anaged the sam e dental of f ice f or over thirteen y ears, working Monday through Thursday

. However, the chancellor determ ined that while S

. G

. c o u l d provide m ore daily care, G.L. was in preschool and was adequately

provided f

o r while the f

oster parents were at work. ¶35. W e f

i nd no abuse o f discretion with t he c h ancellor’s f indings or analy sis of this f actor. D. Stability of the Hom e ¶36. Further, the chancellor noted that G.L., the f oster parents, and their two sons lived in

a n ewly built, f

ive-bedroom , three-bath hom e. G.L. has her own r oom a nd toy s. The f oster parents testif

ied that t hey have a support sy stem consisting of several f a m ily m em

b ers to help

care f or G.L., and that G.L. was f a m iliar with these m em

bers of their f

am ily

. T heref

ore, the

11chancellor f ound that the f

oster parents had e xtensive f am ily to a ssist i n r e a r ing G.L., whereas the grandparents p r esented no evidence of additional f am ily support. As a result, the chancellor f

ound this f

actor slightly

weighed in f

avor of the f oster parents. ¶37. Accordingly , w e f ind n o a buse of discretion with the chancellor’s analy s is of the f actor. Furtherm ore, this Court has held:
An Albright analy sis is n ot prem ised solely o n a scoring sy s tem to determ ine which parent “wins,” a nd our review f or m anif est er r o r is not a m echanical check on the chancellor’s score card to see if she “ tallied” e a ch parent’s score correctly

. I nstead, we ask w hether the chancellor considered all relevant f a cts, giving def

erence to the weight she assigns each f actor. In r e N.B., 135 So. 3d a t 227 ( ¶30) (quoting May v. May , 107 So. 3d 1052, 1054 (¶8) (Miss. Ct. App. 2013)). ¶38. Additionally , the chancellor noted that there was n o e vidence presented that any of the p arties suf

f ered f rom im m oral character or exhibited a n y i m m oral behavior, nor was there
any evidence that the p a rties had been involved i n any illegal activity

. T he chancellor stated that both f

am ilies attended church regularly and enjoy ed long m arriages. S o the argum ent the grandparents subm i t t o this Court asserting that the chancellor’s application of t he f actors showed their f

am ily in a negative light is m eritless. ¶39. Final l y , d

u r i n g o r a l a r g u m e n t , t h e g r a n d p a r e n t s c onceded that the chancellor’s analy sis of the Albright f

a ctors d id not am ount to m a nif est error. They a l s o c onceded that the chancellor’s analy sis of the A lbright f actors was thorough, e v e n though they did not agree with the chancellor’s analy sis of the f actors.

12¶40. Accordingly , af ter review of the record, the chancellor’s written f indings and judgm ent, and o ral a rgum ent, we f ind t hat t he chancellor did not abuse his discretion in his analy sis o f the Albright f

actors. The chancellor m ade clear f indings of f

act and conclusions of law f o r each f actor af ter weighing the evidence, including the GAL’s report. ¶41. AFFIRMED

. LEE, C .J. , IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, J J., CONCUR. TINDELL, J., NOT PARTICIPATING.

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