           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-CA-00115-COA

IN THE MATTER OF THE GUARDIANSHIP OF
C.B.F., A MINOR: PAUL FOUNTAIN                                               APPELLANT

v.

HOLLEE FOUNTAIN REON, CLAYTON                                                APPELLEES
KEETON, AND ARMONDA FOUNTAIN

DATE OF JUDGMENT:                          01/05/2017
TRIAL JUDGE:                               HON. JERRY G. MASON
COURT FROM WHICH APPEALED:                 LAUDERDALE COUNTY CHANCERY
                                           COURT
ATTORNEY FOR APPELLANT:                    LESLIE C. GATES
ATTORNEY FOR APPELLEES:                    GEORGE H. SPINKS
NATURE OF THE CASE:                        CIVIL - CUSTODY
DISPOSITION:                               AFFIRMED: 05/08/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Paul Fountain, the maternal grandfather of C.B.F., hereinafter referred to as Carter,1

appeals the chancellor’s application of the natural-parent presumption and award of custody

to his daughter, Hollee Fountain Reon, Carter’s mother. We find no error and affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Hollee, born in 1998, is the daughter of Paul and Armonda Fountain. Hollee and




       1
         For privacy purposes, we substitute a fictitious name for the minor child and use the
fictitious name in lieu of initials to facilitate review of the opinion.
Clayton Keeton are the natural parents of Carter, a male child born in 2013.2 Shortly after

Carter’s birth, Hollee was admitted to a mental-health center for approximately two weeks

to receive inpatient treatment for post-partum depression.

¶3.    Following the birth of Carter, Hollee and Carter lived with Armonda in Meridian.

Hollee’s boyfriend, Travis, would occasionally stay with her at Armonda’s residence. Paul

would visit with Carter on the weekends.

¶4.    On June 12, 2013, Armonda filed a “petition for appointment of temporary guardians

for minors” in the Chancery Court of Lauderdale County. The petition, which Hollee joined,

sought the appointment of Armonda “as temporary guardian of [Carter] until such time as

the mother of said minor, [Hollee], c[ould] demonstrate to th[e] [c]ourt that she [wa]s ready

and capable of caring for said minor.”

¶5.    In September 2013, Hollee, Carter, and Travis left Armonda’s residence after an

argument over money. They moved into Paul’s residence in Collinsville. Approximately two

weeks later, Hollee, Carter, and Travis went to Paul’s mother’s house in Picayune, where

they stayed for three weeks. According to Hollee, upon her return to Paul’s residence, Paul

informed her that she could “take [Carter] and go to Vicksburg or stay [t]here and go to East

Mississippi State Hospital.” That night, Paul took Hollee and Travis to Travis’s parents’

house in Vicksburg. However, when Paul failed to bring Carter to her, Hollee returned to

Meridian. Upon Hollee’s return, Paul informed her that she could not have Carter; that he

had custody of him.



       2
           Hollee and Clayton’s relationship ended when Hollee became pregnant with Carter.

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¶6.    Unbeknownst to Hollee or Armonda, Paul had initiated custody proceedings in the

Lauderdale County Youth Court. On October 1, 2013, a shelter hearing was held “based

upon a[n] affidavit alleging that [Armonda] ha[d] kicked [Hollee] out of her household and

[Hollee] has a 6[-]month[-old] infant to care for as well.” Following the shelter hearing, a

temporary placement judgment was entered, which awarded temporary physical and legal

custody of Hollee to Paul.

¶7.    A second shelter hearing was held on October 22, 2013, wherein Paul claimed that

Hollee had run away from his home with her boyfriend, leaving Carter with him. Following

the shelter hearing, the youth court temporarily placed physical and legal custody of Carter

with Paul.

¶8.    On October 11, 2013, the chancery court, also unaware of the youth court

proceedings, granted Armonda’s petition for temporary guardianship and appointed Armonda

as temporary guardian of and over Carter.3 The chancellor noted that Clayton had been

notified of and approved the appointment. The chancellor further noted that the temporary

guardianship covered physical custody only. The chancellor ordered yearly status reviews

of the guardianship.

¶9.    On November 18, 2013, Hollee’s attorney wrote a letter to the youth court seeking

clarification of the proceedings. Thereafter, on December 19, 2013, the youth court entered

a judgment transferring jurisdiction to the chancery court and acknowledged that it “was not

informed of any pending [g]uardianship . . . .” As a result of the transfer, an adjudication

       3
         For unknown reasons, the order entered by the chancellor on October 11 was not
filed by the chancery clerk until October 30, 2013.

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hearing was never heard in the youth court.

¶10.      Following the transfer of jurisdiction to chancery court, Carter remained in Paul’s

custody. Paul filed a complaint for relief from judgment pursuant to Mississippi Rule of

Civil Procedure 60(b), as well as a counterclaim for guardianship or, in the alternative, a

petition for change of guardian and/or for modification of guardianship.

¶11.      Hollee and Armonda filed a motion for visitation with Carter. Following a hearing,

the chancellor granted temporary visitation between Hollee and Carter to be supervised by

Armonda. Hollee became emancipated on February 14, 2015, at the age of sixteen, when she

married Adrien Reon.

¶12.      The chancellor appointed a guardian ad litem (GAL). In her initial report, filed May

27, 2015, the GAL opined that Hollee forfeited the natural-parent presumption and

voluntarily relinquished custody of Carter to Armonda upon her joinder in the petition for

appointment of temporary guardianship. The GAL conducted an Albright analysis and found

that the factors favored Paul.4 The GAL concluded that Paul should be granted custody of

Carter.

¶13.      The GAL filed a first supplemental report on December 1, 2015, and found that

Clayton willfully deserted Carter through his inaction and avoidance of duty. Additionally,

the GAL noted that she had spoken with Erica Flake, a psychiatric nurse practitioner, who

began seeing Hollee in November 2014. According to Ms. Flake, Hollee had been diagnosed

with bipolar disorder and attention deficit hyperactivity disorder and was on daily



          4
              Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).

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medication. She and Hollee would meet at least once a month, but often twice a month. At

Ms. Flake’s recommendation, Hollee also sought therapy with Beth Wilkerson to further

assist her in developing coping skills. Ms. Flake reported that Hollee was “stressed about

[Carter] not being in her custody.” Ms. Flake advised that she had seen improvements in

Hollee’s behavior.

¶14.   On December 23, 2015, Armonda, Hollee, and Clayton filed their answer to Paul’s

complaint and counterclaim for guardianship and also filed a counterclaim for custody and

guardianship. Specifically, Armonda, Hollee, and Clayton requested that Hollee be awarded

custody of Carter or, alternatively, that Armonda be appointed temporary guardianship until

such time as Hollee could demonstrate that she was ready and capable of caring for the minor

child. Armonda, Hollee, and Clayton also filed an “amended petition for appointment of

temporary guardian for minors.”

¶15.   On April 11, 2016, the GAL filed a second supplemental report and noted that Hollee

and Adrien had purchased the house next door to Armonda and moved into the home in late

December 2015. The GAL toured the home and found it needed improvements. The GAL

further noted Hollee’s continued treatment with Ms. Flake and Ms. Wilkerson “on a regular

basis.” Importantly, the GAL opined that although Hollee “posed a probable serious harm

or detriment to [Carter] at the time that this suit was brought by . . . Paul[,] . . . Hollee has

matured as a person, thus making her a more suitable caregiver, and she has taken ownership

of the management of her mental illness.” However, the GAL maintained that Hollee waived

the natural-parent presumption by voluntarily relinquishing custody of Carter to Armonda.



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¶16.   The GAL’s third supplemental and final report was filed September 15, 2016. The

GAL noted that although some improvements to Hollee and Adrien’s residence had been

made, additional improvements were still needed.

¶17.   This matter went to trial in September 2016. On January 5, 2017, the chancellor

entered a memorandum opinion and final judgment and awarded Hollee custody of Carter.

The chancellor first determined that Hollee did not voluntarily relinquish custody of Carter

and forfeit the natural-parent presumption. The chancellor found that the order granting

temporary guardianship was void due to a lack of subject-matter jurisdiction. He noted that

the youth court had exclusive jurisdiction from October 2013 through December 19, 2013.

Additionally, the chancellor noted that “Hollee did not join in a request for Armonda to be

appointed as a permanent guardian for [Carter] and Hollee did not irrevocably surrender her

rights, obligations, and privileges as the natural-parent of [Carter].”

¶18.   The chancellor further determined that Paul had not shown by clear and convincing

evidence that Hollee abandoned or deserted Carter, that Hollee’s conduct was so immoral as

to be detrimental to the child, or that Hollee was unfit to have custody of Carter. Moreover,

the chancellor found “[t]he evidence d[id] not develop that actual or probable, serious

physical or psychological harm or detriment w[ould] occur if the custody of [Carter] [wa]s

placed with Hollee.”

¶19.   Paul now appeals and argues the chancellor erroneously found that Hollee did not

voluntarily relinquish custody of Carter and forfeit the natural-parent presumption.

                                STANDARD OF REVIEW



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¶20.   “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or

clearly erroneous.” Vaughn v. Davis, 36 So. 3d 1261, 1264 (¶9) (Miss. 2010). “A

chancellor’s conclusions of law are reviewed de novo.” Id.

                                         ANALYSIS

       I.     Whether Hollee forfeited the natural-parent presumption.

¶21.   Paul argues Hollee “forfeited the [natural-]parent presumption by a voluntary

relinquishment.” “At the outset of this discussion, we reaffirm that the paramount and

ultimate goal in every child custody case must be the best interests of the child.” Id. at (¶10).

Under the natural-parent presumption, “it is presumed that it is in the best interest of a child

to remain with the natural parent as opposed to a third party.” Id. However, in Grant v.

Martin, 757 So. 2d 264, 266 (¶9) (Miss. 2000), the Mississippi Supreme Court established

an exception or a new standard for such instances where the natural parent consents to and

joins in court proceedings granting custody to a third party.

¶22.   In Grant, both the mother and father voluntarily relinquished full custody of their

three minor children to the paternal grandparents. Id. at 264 (¶1). The grandparents were

appointed as guardians pursuant to a chancellor’s order. Id. at 264-65 (¶1). Two years later,

the mother and father divorced and agreed that custody of the children would remain with

the paternal grandparents. Id. at 265 (¶2). Two years after the divorce and four years after

she relinquished custody of her children, the mother petitioned for a modification of custody

and the return of her children. Id. at (¶3). The chancellor denied the mother’s request and

dismissed the case. Id. at (¶4).



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¶23.   On appeal, this Court “found that grandparents have no right to custody of a

grandchild as against a natural parent and that a natural parent’s bid for custody must prevail

absent a showing of abandonment or unfitness, . . . and reversed and rendered in [the

mother’s] favor . . . .” Id. at 266 (¶7). However, the Mississippi Supreme Court granted

certiorari and explained:

       While we do not want to discourage the voluntary relinquishment of custody
       in dire circumstances where a parent, for whatever reason, is truly unable to
       provide the care and stability a child needs, neither do we want to encourage
       an irresponsible parent to relinquish their child’s custody to another for
       convenience sake, and then be able to come back into the child’s life years
       later and simply claim the natural parents’ presumption as it stands today.

Id. at (¶9). As a result, the court adopted a new standard and held “that a natural parent who

voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction,

has forfeited the right to rely on the existing natural parent presumption.” Id. at (¶10). The

court reversed and remanded for a full hearing on the merits. Id. at (¶11).

¶24.   Additionally, in D.M. v. D.R., 62 So. 3d 920 (Miss. 2011), the court analyzed the

waiver of the natural-parent presumption. There, the paternal grandparents sought custody

and guardianship of the minor child after the adoptive parents died. Id. at 921 (¶3). The

natural mother, who had consented to the adoption, also sought custody and guardianship of

the child. Id. at (¶¶2-3). The court found that the mother was not entitled to the natural-

parent presumption since an adoption “acts as an irrevocable surrender of all rights,

obligations and privileges of the natural parent with and to the child.” Id. at 927 (¶26).

¶25.   Here, unlike in Grant and D.M., Hollee did not voluntarily relinquish custody of

Carter. Although she joined a petition for appointment of temporary guardianship, such

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petition never requested that custody of Carter be permanently awarded to Armonda, nor did

it relinquish Hollee’s rights, obligations, and privileges as Carter’s natural mother.

Moreover, as noted by the chancellor and acknowledged by Paul, the order granting

temporary guardianship was ultimately set aside as void. Thus, unlike in Grant and D.M.,

we have no court order of relinquishment, only a petition for temporary relief, that in no way

relinquished Hollee’s rights as Carter’s mother.

¶26.   Paul contends that Hollee’s “lack of readiness” and “acquiescence for three years in

Paul’s actual custody of Carter” are sufficient facts to show voluntary relinquishment by

Hollee. However, the record shows Hollee continued to exercise her parental rights,

obligations, and privileges throughout this matter. The record shows that despite her joinder

in Armonda’s petition for temporary guardianship, Hollee never relinquished custody of

Carter to Armonda. Instead, Hollee continued to live at Armonda’s home with Carter. When

she left Armonda’s residence and moved in with Paul, Hollee did so with Carter. In other

words, Hollee assumed custodial and parental responsibility for Carter despite Armonda’s

request for temporary guardianship and despite no longer living with Armonda.

¶27.   Additionally, Hollee maintained custody of Carter while living with Paul. When

Hollee went to visit Paul’s mother, she took Carter with her. Moreover, when Paul took

Hollee to Vicksburg, it was Hollee’s understanding that Paul would bring Carter to her.

When that did not occur, Hollee returned to Meridian. Upon her return, she was advised of

the custody proceedings in youth court. However, as noted by the chancellor, Paul was not

straightforward with the youth court regarding the circumstances in September and October



                                              9
2013. Indeed, as the youth court judgment indicates, Paul asserted that Hollee had “run

away” from his home and left Carter in his care. Such an assertion was disingenuous since

Paul himself took Hollee to Vicksburg, with knowledge of her location.

¶28.   It is interesting that Paul cites Hollee’s “acquiescence for three years” as support for

his voluntary relinquishment argument when it was Paul’s disingenuous assertion to the

youth court that led to his award of temporary custody. Indeed, Hollee did not voluntarily

relinquish custody of Carter to Paul. Instead, Paul initiated custody proceedings in youth

court unbeknownst to Hollee, Armonda, and the chancery court. It was not until Paul

initiated custody proceedings and claimed that Hollee ran away and left Carter, that Hollee

“lost custody” of Carter.

¶29.   While it is true that Hollee did not move to set aside the youth court orders or

immediately move for custody of Carter, she did, through her attorney, write a letter to the

youth court on November 18, 2013, disputing the allegations and seeking clarification of the

proceedings. Additionally, Hollee moved for visitation, which was granted. While awaiting

trial in this matter, Hollee maintained contact and continued visitation with Carter, and

worked to improve her mental health as well as her physical surroundings (i.e., her home) in

order to provide a more stable environment for Carter.

¶30.   In support of his voluntary relinquishment argument, Paul relies on Hill v. Mitchell,

818 So. 2d 1221 (Miss. Ct. App. 2002). In Hill, the parents of the minor child divorced in

December 1987. Id. at 1222 (¶2). In August 1988, the father and the paternal grandparents

moved for a temporary emergency order and asserted that since the final decree of divorce,



                                             10
the child had resided with the paternal grandparents. Id. at (¶3). The grandparents claimed

that the mother had taken the child from their home while under the influence of drugs and

alcohol. Id. The chancellor found the child to be in immediate danger and entered an order

granting the grandparents temporary physical custody of the child. Id. at (¶4).

¶31.   In September 1988, the grandparents moved for permanent legal and physical custody

of the child. Id. at (¶5). The father joined the complaint. Id. The mother subsequently

answered and filed a cross-complaint seeking custody. Id. However, there were no further

proceedings until the child’s mother filed a complaint for modification eleven years later in

December 1999. Id. at (¶6). Following a hearing, the chancellor found the mother had

“constructively abandoned” the child and had “delegated parenting to the [grandparents].”

Id. at (¶7).

¶32.   On appeal, this Court noted that the grandparents had had custody of the child since

she was eight months old. Id. at 1225 (¶23). Moreover, we noted that the mother had not

seen the child “from at least the time that she was eight months old until three years of age.”

Id. We found that “[t]he substantial passage of time, both before the entry of the temporary

order and certainly between 1988 and 1999, was an acceptance by [the mother] of the present

custody arrangement” and affirmed the chancellor’s judgment. Id. at 1226, 1228 (¶¶26, 45).

¶33.   We find Hill distinguishable. Unlike in Hill, Hollee did not go years without seeing

her child. Hollee maintained contact and visitation with Carter while in Paul’s temporary

custody. Moreover, unlike in Hill, Hollee did not allow Paul’s temporary custody to remain

unchallenged for eleven years. Although Carter remained in Paul’s custody for three years



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pending trial, there was consistent movement by the parties to litigate and resolve this matter.

¶34.   Although Hollee is a young, teenage parent, there is no evidence that Hollee is “an

irresponsible parent [who] relinquished [her] child’s custody to another for convenience

sake” and now attempts “to come back into the child’s life years later.” Grant, 757 So. 2d

at 266 (¶9). As Hollee’s actions did not amount to a voluntary relinquishment of custody,

the chancellor did not err in finding that the natural-parent presumption applied.

       II.    Whether Paul failed to rebut the natural-parent presumption.

¶35.   Although not specifically asserted, it appears Paul claims the chancellor erroneously

concluded that he failed to rebut the natural-parent presumption by clear and convincing

evidence. We disagree.

¶36.   The natural-parent presumption “may be rebutted by clear and convincing evidence

that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the

parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit,

mentally or otherwise, to have custody.” Wilson v. Davis, 181 So. 3d 991, 995 (¶7) (Miss.

2016). Additionally, the presumption “may be rebutted by clear and convincing evidence

that actual or probable, serious physical or psychological harm or detriment will occur to the

child if custody is placed with the natural parent, such that granting custody to the third party

is substantially necessary to prevent such probable harm.” Id. at 995-96 (¶8). “Such a

finding must prevent probable harm to the child, and not simply find that the third party can

provide the child with different or arguably ‘better’ things.” Id. at 997 (¶8). “If the natural

parent presumption is rebutted, the court may then proceed to determine whether an award



                                               12
of custody to the challenging party will serve the child’s best interests.” Id. at 995 (¶7).

¶37.   Paul does not challenge the chancellor’s findings regarding each factor. Instead, Paul

claims that “[r]igid adherence [to proving one of the four factors] placed [Carter] in a

circumstance which is clearly not in his best interests.” See id. at (¶8) (noting “that the rigid

adherence to proving one of the four precise factors to rebut the natural parent presumption

may, in very limited and exceptional circumstances, place a child in a circumstance that is

clearly not in his or her best interests”). However, as noted by the GAL, simply because Paul

may offer a more suitable home for Carter is not enough to rebut the natural-parent

presumption. Indeed, the chancellor found there was no evidence that “actual or probable,

serious physical or psychological harm or detriment w[ould] occur if the custody of Carter

[wa]s placed with Hollee.”

                                       CONCLUSION

¶38.   We find the facts of this case do not show that Hollee forfeited the natural-parent

presumption by voluntary relinquishment. Additionally, Paul failed to provide clear and

convincing evidence to rebut the natural-parent presumption. Accordingly, we affirm the

judgment of the Lauderdale County Chancery Court.

¶39.   AFFIRMED.

    LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR.




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