Youth Court and Guardians Ad Litem in Legal Proceedings
The content discusses the involvement of Guardians Ad Litem (GAL) in legal cases, their roles, qualifications, and limitations. GALs may serve as experts, investigate specific issues, and make recommendations. The text also covers the training and certification process for GALs in Mississippi, highlighting their legal expertise in child protection and welfare matters.
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Presentation Transcript
THIRD HOUR: YOUTH COURT, GUARDIANS AD LITEM
SUMMERS V. GROS The chancellor originally appointed the GAL as an expert. The chancellor rejected the recommendations because of the GAL s lack of knowledge of critical facts. Later, the chancellor held instead that the GAL would testify as a guardian ad litem. The supreme court held that it was not error to allow the GAL to testify as a guardian ad litem rather than as an expert. The chancellor rejected the mother s attempt to introduce the GAL as an expert but allowed testimony as a GAL.
MUST A GUARDIAN BE AN EXPERT TO GIVE AN OPINION? McDonald v. McDonald, 39 So.3d 868, 883 (Miss. 2010) (Dickinson, concurring) (a majority joining): [G]uardians ad litem properly appointed under Rule 706 and qualified as experts under Rule 702 may rely on hearsay in reaching their opinions. Rule 1 of the Mississippi Rules of Evidence plainly says those rules apply in chancery court and they include no exception for guardians ad litem. Id.
GALs may clearly serve in a limited capacity to investigate and report on specific issues: Smith v. Smith, 206 So.3d 502, 512 ( 23) (Miss. 2016). The Court approved the limited role the GAL was assigned -- to investigate sexual abuse allegations, secure and coordinate expert witnesses, and make a recommendation on visitation, but not on custody. LIMITED ROLE GUARDIANS Carter v. Carter, 204 So.3d 803, 806 ( 12) (Miss. Ct. App. 2015). The GAL ... was appointed for a specific [limited] purpose to investigate [the mother s] home environment just as the supreme court contemplated in S.G. v. D.C.
QUALIFYING THE GAL AS AN EXPERT GALs are trained annually by the Mississippi Judicial College for certification under the statutory standards established in Miss. Code Ann. 43-21-121(4). In addition, a guardian ad litem arguably has knowledge, skill, experience, training, and education as an attorney investigating cases, marshaling evidence, examining witnesses, researching and applying legal principles, and adhering to the rules of evidence, procedure, and other court rules. This training includes specific education about child protection and welfare.
MANDATORY VS DISCRETIONARY GAL When a GAL is mandatory (cases of abuse and neglect, TPR) Practice tip: Ensure that the court s order state whether the appointment is mandatory or discretionary to prevent any confusion on the issue. - The GAL must submit a report. - The chancellor must summarize the recommendations. - The chancellor must state reasons for not following recommendations.
The chancellor did not follow the mandatory GAL s recommendation that a mother participate in reunification counseling with her son. The chancellor did not follow the GAL s recommendation that the mother not have visitation until the boy s counselor felt it was safe for him. WARREN V. RHEA The Court of Appeals reversed and remanded because the chancellor failed to explain why they deviated from the mandatory GAL s findings and recommendations.
CHANCELLOR DISCRETION Bare allegations of neglect or abuse must be supported by some factual basis before a chancellor is required to appoint a mandatory GAL. A mother failed to provide sufficient evidence to require appointment. Savell v. Manning, 325 So. 3d 1208 (Miss. Ct. App. 2021). Chancellors have discretion to determine whether there is a legitimate issue of abuse. Father s evidence did not support a legitimate issue of abuse. Embrey v. Young, ___ So.3d. ___, 2021 WL 5576070 (Miss. Ct. App. No. 2021-CA- 00091-COA, decided Nov. 30, 2021).
Friends of a deceased father rebutted the natural parent presumption, proving a mother s unfitness based on - Medical neglect - Educational neglect ROBERTS V. CONNER - Failure to provide for child s basic needs - Failure to provide basic hygiene - Failure to provide a habitable home.
DESERTION IN CUSTODY CASES Desertion means: Until recently, desertion for purposes of third party custody was not well defined. Any conduct by the parent over an extended period of time that demonstrates a willful neglect or refusal to provide for the support and maintenance of the child. In Summers v. Gros the court of appeals looked to the TPR Law definitions to determine desertion in third-party custody cases. Miss. Code Ann. 93-15-103(d)
Prior cases stated that nonpayment of child support was not in itself a basis for desertion. See, e.g., In re Interest of J.D., 512 So. 2d 684, 686 (Miss. 1987) ( [C]onstant arrearages in child support payments do not constitute abandonment or desertion. ) (quoting Miller v. Arrington, 412 So.2d 1175, 1178 (Miss. 1982))). DESERTION: CHILD SUPPORT PAYMENT In Summers, the court acknowledged prior law, but held that the TPR Law may have changed the standard.
IMPUTED LIABILITY Coulter v. Dunn: A mother s rights were terminated after an infant suffered multiple fractures and injuries while in her sole custody. A trial court may infer that parents are responsible for abuse when they are the only persons with custody of a child. Responsibility for child abuse can be imputed to the parent even if there is no direct evidence.
Parental rights with regard to a newborn child may be terminated based on anticipatory neglect the parent s abuse or neglect of older children. ANTICIPATORY NEGLECT In addition, a court may bypass reunification efforts with a newborn based on the parent s abuse of older children. Interest of K.M. v. Jackson County Youth Court, ___ So.3d ___, 2020 WL 7056087 (Miss. Ct. App. Dec. 1, 2020)
A mothers rights were terminated based on substance abuse - that she was unable to control - that contributed to a substantial erosion of the parent-child relationship. SUBSTANCE ABUSE The children were born with drugs in their bodies, the mother refused most drug tests, she attempted to secure her own tests with a relative's urine, and tested positive when she were tested properly. She did not visit the children regularly. M.A.S. v. Lamar County CPS, ___ So.3d. ___, No. 2020-CA-00070- COA, 2021 WL 4271909 (Miss. Ct. App. Sept. 21, 2021).
Abandonment may be proved by showing that on the date of the petition, the parent has deliberately made no contact with a child over the age of three for one year. ABANDONMENT A father who had no contact with his son for five years, in part while litigation was pending, had abandoned his son. His mistaken belief that he could not contact the mother for informal visitation did not overcome five years of no contact. Smith v. Doe, 314 So. 3d 154 (Miss. Ct. App. 2021).
REQUIRED NOTICES TO PARENTS The court must also inform parents of the right to counsel, the right to remain silent, the right to subpoena witnesses and to confront and cross-examine witnesses, the right to appeal, and the right to a transcript. Id. In TPR hearings, the court must explain to the parents the purpose of the hearing, the standard of proof to terminate parental rights, and the consequences of termination. MISS. CODEANN. 93-15-113(2).
Harmless error A court s failure to provide a father with the required notices was harmless error because he was represented by an attorney at the hearing. FAILURE TO PROVIDE RIGHTS Interest of M.M., 319 So. 3d 1188 (Miss. Ct. App. 2021).
Waiver A mother waived arguments related to adjudication and disposition hearings because she did not appeal from those orders. She waived arguments related to notices because her counsel did not object. In addition, because she was represented by counsel, the failure was harmless error. FAILURE TO PROVIDE RIGHTS M.A.S. v. Lamar County CPS, No. 2020-CA- 00070-COA, 2021 WL 4271909 (Miss. Ct. App. Sept. 2021).
OBTAINING YOUTH COURT RECORDS IN CHANCERY PROCEEDINGS Rule 6(a), U.R.Y.C.P. Procedures for issuing a subpoena duces tecum. No subpoena duces tecum for records involving children . . . shall issue from any court other than youth court except upon compliance with the following procedures: (1) the party shall make an application to the [chancery] court specifying which records are sought; (2) the [chancery] court shall issue a subpoena duces tecum to the youth court for these records; (3) the youth court, unless a hearing is conducted pursuant to Rule 6(b) of these rules, shall transfer copies of the records to the court.
OBTAINING YOUTH COURT RECORDS Rule 6(b), U.R.Y.C.P. Hearing on access to confidential files. The youth court may require a hearing to determine whether the court or parties have a legitimate interest to be allowed access to the confidential files. In determining whether a person has a legitimate interest, the youth court shall consider the nature of the proceedings, the welfare and safety of the public, and the interest of the child.
REQUEST FOR APPEARANCE The subpoena duces tecum requests: 5. Further, you are hereby requested to authorize the Mississippi Department of Child Protection Services, their Family Protection Specialist, Supervisor, Employees, Agents, or Forensic Interviewers assigned to these matters to appear and offer testimony regarding the Youth Court records relevant to the minor child(ren) at issue upon the matter being called for hearing before this Court.
NOTICE OF CRIMINAL PENALTIES FOR VIOLATING CONFIDENTIALITY RULES The Motion For Limited Release includes notice of criminal penalties: 13. Miss. Code Ann. 43-21-267 (West 2021) provides: (1) Any person who shall disclose or encourage the disclosure of any records involving children or the contents thereof without the proper authorization under this chapter shall be guilty of a misdemeanor and punished, upon conviction, by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the county jail of not more than one (1) year or by both such fine and imprisonment.
E.K. v. Miss. Dept. of Child Protection Services, 249 So.3d 377, 381 ( 13) (Miss. 2018) June 20, 2016 child adjudicated neglected July 1, 2016 chancellor certified parents interlocutory appeal; supreme court dismissed appeal as premature AFTER THE FINAL ORDER? April 3, 2017 permanency order; parents appealed The supreme court considered the adjudication hearing issues raised by the parents as dispositive of the case. The holding suggests that parents should NOT appeal adjudication hearings but should appeal after the final order in the matter.
Interest of M.M., 319 So. 3d 1188 (Miss. Ct. App. 2021). December 28, 2017 adjudication and disposition order June 25, 2018 permanency orders AFTER EACH ORDER. August 13, 2018 appeal of all orders The court of appeals held that the thirty- day limit for appealing the adjudication order is strictly enforced and the appeal was untimely.
DOES THE FILING OF A POST-TRIAL MOTION STAY A NOTICE OF APPEAL? The Youth Court Rules of Procedure do not provide for post-trial motions. A boy found to be a child in need of supervision filed - a post-trial motion to set aside - a notice of appeal In the Interest of PXS, a Minor v. Adams County Youth Court, 2022 WL 2037688 (Miss. Ct. App. June 7, 2022). Because the youth court had no opportunity to rule on the motion, the disposition order was not a final order ripe for appeal. The appeal was dismissed for lack of jurisdiction.
Rule 2(a), U.R.Y.C.P. (a) Proceedings subject to these rules. The following proceedings are subject to these rules: (1) any youth court proceeding; YOUTH COURT RULES (2) any chancery court proceeding when hearing, pursuant to section 93- 11-65 of the Mississippi Code, an allegation of abuse or neglect of a child that first arises in the course of a custody or maintenance action.
Rule 8, U.R.Y.C.P. (c) Chancery court proceedings. When a chancery court orders the Department of Human Services, Division of Family and Children s Services, or other appointed intake unit, to investigate a charge of abuse and neglect that first arises in the course of a custody or maintenance action, the assigned caseworker shall conduct an intake screening process in the same manner as required in child protection proceedings and thereupon [make recommendations] to the court. REQUEST FOR DHS INVESTIGATION
AMENDMENT TO MISS. CODE ANN. 43- 21-355 Any attorney, . . . or any other person participating in the making of a required report pursuant to Section 43 21 353 or participating in * * * an investigation, evaluation or judicial proceeding resulting * * * from the report shall be presumed to be acting in good faith. Any person or institution reporting or participating in an investigation, evaluation or judicial proceeding resulting from the report in good faith shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed.
Chancellors ordering an adult adoption may waive - the doctor s certificate requirement - the home study requirements ADULT ADOPTIONS - the requirements of the Indian Child Welfare Act. - Miss. Code Ann. 93-17-3(4), (5), (6) & (7) (effective July 1, 2022).
TEST FOR BYPASSING REUNIFICATION The youth court removed custody of a child from a mother who threatened harm to herself and another child and found that it should bypass reunification. The court of appeals affirmed, holding that the youth court properly bypassed reunification as in the best interests of the child. In the Interest of Kevin, a Minor, Shayla Taylor v. Miss. Dept. Of Child Protection Services, ___ So.3d ___, 2022 WL 2127320 (Miss. Ct. App. decided June 14, 2022). The opinion did not mention the required statutory findings regarding the parent s conduct.
(c) Reasonable efforts to maintain the child within his home shall not be required if the court determines that: (i) The parent has subjected the child to aggravated circumstances, . . . (ii) The parent has been convicted of murder of another child of that parent, voluntary manslaughter of another child of that parent, . . . , or a felony assault that results in the serious bodily injury to the surviving child or another child of that parent; OR (iii) The parental rights of the parent to a sibling have been terminated involuntarily; AND (iv) That the effect of the continuation of the child's residence within his own home would be contrary to the welfare of the child and that placement of the child in foster care is in the best interests of the child. Miss. Code Ann. 43-21-603(c) (West 2021) (emphasis added). BYPASS REQUIREMENTS
YOUTH COURT TRANSFER TO CHANCERY FOR ADOPTION In re S.A.M., 826 So. 2d 1266 (Miss. 2002) B.A.D., v. Finnegan, 82 So. 3d 608 (Miss. 2012) In re M.I., 85 So. 3d 856 (Miss. 2012) These cases outline the procedure for transferring a youth court order of durable legal custody to chancery court for adoption proceedings.
MAKING A PRIMA FACIE CASE FOR AUTHENTICATION Something more is needed to show authorship such as: the purported sender admits authorship or is seen composing the communication business records show that the communication originated from the purported sender's personal computer or cell phone the communication contains information that only the purported sender could be expected to know the purported sender responds to an exchange in such a way as to indicate circumstantially that he was the author of the communication other circumstances peculiar to the particular case.
