           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-00969-COA

IN THE MATTER OF THE ADOPTION OF THE                                     APPELLANTS
MINOR CHILD DESCRIBED IN THE
PETITION: J.A.G. AND WIFE, S.G.

v.

C.T. AND B.T.                                                              APPELLEES

DATE OF JUDGMENT:                         06/06/2016
TRIAL JUDGE:                              HON. JAMES B. PERSONS
COURT FROM WHICH 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 stems from a contested adoption suit filed in Hancock County Chancery

Court between maternal grandparents, J.A.G.1 and S.G. (“grandparents”), and foster parents,

B.T. and C.T. (“foster parents”). The parental rights of G.L.’s natural parents were

terminated by judgment of the Hancock County Chancery Court following an order from

Hancock County Youth Court recommending termination and a finding that the minor child’s

best interest would be served by adoption. Subsequently, the grandparents filed a complaint


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        To protect the minor child’s confidentiality, we will refer to her and the parties
throughout this opinion by their initials.
for adoption, and the foster parents filed a motion for leave to intervene and an intervenor’s

petition for adoption of G.L. On June 21, 2016, the chancery court granted the foster

parents’ petition to adopt G.L. The grandparents appeal. After our review of the record, we

affirm.

                         FACTS AND PROCEDURAL HISTORY

¶2.       G.L., a minor female child, was born to T.G. (mother) and A.H. (father) on June 21,

2012. T.G. and A.H. were living in a FEMA trailer with A.H.’s mother, M.H. (paternal

grandmother), in Picayune, Mississippi.

¶3.       G.L. was removed from this home and placed in a foster home from January 14, 2013,

through February 5, 2013, after T.G., A.H., and M.H. were found unconscious from ingesting

or taking oxycodone, leaving G.L. alone in the home without supervision. Later in February

2013, G.L. was temporarily placed with her grandparents. G.L. stayed with her grandparents

for a while, because no one else in the grandparents’ family could take care of G.L.

¶4.       The foster parents presented testimony that J.A.G. approached B.T. at work regarding

taking care of G.L. The grandparents of G.L. and the foster parents were close friends, and

the grandparents conceded that they were glad that someone they knew could become foster

parents for G.L. In July 2013, G.L. began spending the night with B.T. and C.T. The

grandparents testified that during this time, the foster parents expressed interest in becoming

G.L.’s foster parents. However, according to the grandparents, permanent reunification of

G.L. with her mother was always the plan.


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¶5.       B.T. and C.T. filed a Resource Family Application and completed the steps required

by the Department of Human Services (“DHS”) to become licensed foster parents. J.A.G.

and S.G. testified that they did not become licensed foster parents, because they felt it would

be an incentive for their daughter to overcome her drug addiction.

¶6.       Dana Spiers, who was a family-protection specialist employed with DHS in 2013,

testified that S.G. stated that she and her husband were not interested in becoming licensed

foster parents, because they had raised other children and did not want to raise any more.

She also testified that S.G. stated that her older daughter, living in Louisiana, decided she

could not handle raising G.L. Further, Spiers testified that S.G. stated that she knew

someone from the community that would adopt G.L., because she could not take care of G.L.

on a long-term basis.

¶7.       Tequila Hall, another family-protection specialist for Hancock County DHS in 2013,

testified that S.G. told her that she and her husband were not interested in becoming licensed

foster parents, because they found family friends willing to adopt G.L. However, S.G.

denied she made these statements, and denied that she did not want to keep G.L. long-term.

¶8.       Subsequently, G.L. permanently moved in with her foster parents in October 2013.

During that time, the grandparents continued to visit G.L. Also during that time, G.L.’s

mother, T.G., moved back in with the grandparents, and visitation with G.L. became more

difficult. However, T.G. began using drugs again and eventually reentered a rehabilitation

center.


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¶9.    In August 2014, the grandparents filed a petition for adoption in the Chancery Court

of Pearl River County. They asserted that they obtained a lawyer and filed a petition for

adoption of G.L. once they realized that T.G. would not comply with the orders from DHS

to reunite with G.L. However, their petition was denied for lack of proper venue.2 C.T. and

J.A.G. testified that they had engaged in a heated exchange after she confronted S.G.

regarding their petition for the adoption of G.L. The grandparents testified that their

relationship with the foster parents became strained after the confrontation, and they had to

obtain an attorney to set visitation schedules.

¶10.   In November 2014, the grandparents filed a petition for custody, termination of

parental rights, and adoption of G.L. in the Chancery Court of Hancock County. In

December 2014, the foster parents filed a motion for leave to intervene and an intervenor’s

petition for adoption. Their amended petition for the adoption of G.L. was filed in July 2015.

¶11.   T.G. and A.H.’s parental rights were terminated, and Ralph Lee Price III (“Price”) was

appointed as guardian ad litem (“GAL”). The grandparents and foster parents presented

evidence, and the chancellor heard the testimony from Price regarding his recommendations

for the adoption of G.L. First, Price recommended that the foster parents’ petition for

adoption of G.L. be approved. Second, Price recommended that the grandparents and foster

parents create a visitation schedule, so that the grandparents could remain in G.L.’s life.



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

                                              4
Price based his recommendation on his extensive review and investigation of G.L.’s file,

which included interviews of both parties and visits to both residences.

¶12.   Using the Albright3 factors, the totality of the circumstances, and considering the best

interest of G.L., the chancellor granted the foster parents’ petition to adopt G.L. The

chancellor also strongly recommended that the foster parents allow the grandparents to visit

G.L., even though the court was without authority to require the foster parents to permit

visitation.

¶13.   The grandparents contend that the chancellor erred in granting the foster parents’

petition for adoption and challenge the chancellor’s analysis and application of certain

Albright factors. Accordingly, we will only address the factors and issues the grandparents

brought before this Court.

                                 STANDARD OF REVIEW

¶14.   “In a case disputing child custody, the chancellor’s findings will not be reversed

unless manifestly wrong or clearly erroneous, or the proper legal standard was not applied.”

In re N.B., 135 So. 3d 220, 223 (¶9) (Miss. Ct. App. 2014) (quoting Mabus v. Mabus, 847

So. 2d 815, 818 (¶8) (Miss. 2003)). Furthermore, “[the appellate court] will affirm the decree

if the record shows any ground upon which the decision may be justified.” Id. (citation and

quotation marks omitted).

                                       DISCUSSION


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

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       I.     Whether the chancellor erred in the “emotional ties” analysis.

¶15.   The chancellor completed an extensive analysis of the Albright factors to determine

the best interest of G.L. In determining the best interest of the child, the following factors

should be considered:

       Age, health, and sex of the child; a determination of the party that has had the
       continuity of care prior to the separation; which has the best parenting skills
       and which has the willingness and capacity to provide primary child care; the
       employment of each party and responsibilities of that employment; physical
       and mental health and age of the parties; emotional ties with the child; moral
       fitness of parties; the home, school and community record of the child; the
       preference of the child at the age sufficient to express a preference by law;
       stability of home environment and employment of each party[;] and other
       relevant factors.

In re N.B., 135 So. 3d at 224 (¶12) (quoting Albright, 437 So. 2d at 1005).

¶16.   The grandparents assert that the chancellor did not honor their emotional ties with

G.L. The grandparents further assert that the chancellor did not mention the “power of their

familial bond.” We disagree. The following is an excerpt from the chancellor’s final

judgment: “While this Court recognizes the [grandparents’] biological family ties with

[G.L.] and is cognizant that kinship may be a factor for consideration, there is no rule

preferring a third party based on the degree of kinship.”

¶17.   We are of the opinion that the chancellor adequately addressed the grandparents’

relationship as G.L.’s biological maternal grandparents. We note that the grandparents’

kinship to G.L. does not require that they are given a preference for custodial or adoption

purposes. The grandparents are the maternal grandparents of G.L.—not her biological


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parents. This Court has previously held that “we are aware of no hard and fast rule that gives

preference in a custody dispute such as this to any particular litigant based solely on the

degree of kinship.” Loomis v. Bugg, 872 So. 2d 694, 698 (¶17) (Miss. Ct. App. 2004).

Therefore, this issue is without merit.

¶18.   During oral argument, the grandparents asserted that they had constitutional rights as

blood relatives in an adoption matter and cited Moore v. City of East Cleveland, Ohio, 431

U.S. 494 (1977). However, they did not present this argument in their brief before this Court,

and so we cannot make this determination regarding the constitutional rights of grandparents

in this adoption matter even though parental rights have been terminated. This issue is not

properly before this Court.

       II.    Whether the chancellor erred in the “parenting skills” analysis.

¶19.   The grandparents assert that they were punished by the chancellor, because they

worried that their long-term care of G.L. would disrupt their daughter’s recovery from drug

abuse. As a result, they argue that the “parenting skills” analysis of the Albright factors was

incorrectly weighed against them. We disagree.

¶20.   The chancellor discussed the grandparents’ decision declining to become G.L.’s foster

parents. They asserted that they made the decision because they thought it would be a

disincentive to their daughter’s rehabilitation. However, we find nothing in the record to

reflect that the chancellor abused his discretion by discussing their support of their daughter.

¶21.   The grandparents testified that their daughter would come to stay with them after her


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stints in rehabilitation centers. We note that the chancellor found the grandparents’ daughter

an issue of particular concern. The chancellor was concerned that the biological mother

could remain an integral part of G.L.’s life if they were awarded custody.

¶22.   In In re N.B., 135 So. 3d at 226 (¶25), this Court held: “[W]e do not find that the

chancellor erred in considering the relationship the parties had with their children, current

or prospective, when reconsidering their parenting skills.” In re N.B. stemmed from a

contested adoption suit filed in Prentiss County Chancery Court between paternal

grandparents and paternal great-grandparents on behalf of biological minor twins. Id. at

221-22 (¶1).

¶23.   Accordingly, we find this issue to be without merit.

       III.    Whether the       Albright   factors    negatively    portrayed     the
               grandparents.

¶24.   The grandparents assert that the chancellor portrayed their family in a negative light

while analyzing four of the other Albright factors: “the physical and mental health and age

of the parents,” “age, health, and sex of the child,” “employment of the parents,” and

“stability of the home.”

               A.    The Physical and Mental Health and Age of the Parties

¶25.   The grandparents contend that the chancellor erred in not finding that their physical

and mental health and age should have been weighed equally with that of the foster parents.

They maintain that no evidence was presented that their age incapacitated them from being

parents.

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¶26.   In support of their assertion, the grandparents reference that there was no evidence

presented for the chancellor to weigh this factor in favor of the foster parents. In fact, the

chancellor noted that all parties were in good physical and mental shape. The chancellor also

noted that C.T. was thirty-four years old, and B.T. was thirty-eight years old at the time, and

that they were nonsmokers. The foster parents also passed their medical evaluation by the

Mississippi Department of Health prior to G.L.’s placement in their home.

¶27.   Further, the chancellor discussed that J.A.G. was forty-nine years of age, and S.G. was

forty-eight years of age at the time. There was evidence presented that they were both

smokers; however, they avoided smoking in their homes and automobiles. Although the

chancellor stated that the foster parents’ younger ages made them more compatible with

raising a young child, he concluded that the factor weighed in favor of the foster parents,

because they were nonsmokers. At trial, testimony was presented that G.L. suffers from

asthma and uses an inhaler regularly.

¶28.   The grandparents assert that there was no evidence presented that G.L. had ever had

an asthma attack as a result of their smoking. However, the chancellor’s discussion of G.L.’s

asthma and the smoking habits of the grandparents is not an abuse of discretion. Moreover,

this Court has upheld a chancellor’s findings where smoking was considered in an Albright-

factor analysis. See Davis v. Stephens, 85 So. 3d 943, 950 (¶31) (Miss. Ct. App. 2012); Love

v. Love, 74 So. 3d 928, 934 (¶25) (Miss. Ct. App. 2011).

¶29.   Therefore, we find no abuse of discretion. We agree with the chancellor’s analysis


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of this factor. Furthermore, this Court has previously held that “the chancellor has the

ultimate discretion to weigh the evidence the way she sees fit in determining where the

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 the chancellor erred in finding that the age, health, and

sex of G.L. weighed in favor of the foster parents. In support of their argument, the

grandparents argue that nothing in the record described how they could not provide for a

child G.L.’s age, and that the facts indicate they had been her only parents for the better part

of a year when she was very little.

¶31.   Evidence at trial revealed that G.L. was three years of age at the time. She was

generally in good health; however, she occasionally struggled with asthma and used an

inhaler. The chancellor noted that the foster parents have two young sons, ages eleven and

seven, who reside at the home where G.L. has lived for the majority of her life. The foster

parents testified that their sons were honor-roll students who were involved in sports and

weekly events at church. Additionally, the foster parents testified that they take their sons

to weekly practices. G.L. takes gymnastics and ballet classes, which involve weekly

rehearsals. The grandparents’ youngest child was nineteen years of age at the time of trial.

There was no evidence to suggest that the grandparents were busy with activities with their

youngest child. Therefore, the chancellor found that the foster parents led a lifestyle

conducive to successful parenting of younger children and concluded that the adoptive


                                              10
parents’ lives were centered around rearing children.

¶32.   Accordingly, we find there is credible evidence to support the chancellor’s decision,

and this issue is meritless.

              C.      Employment of the Parents

¶33.   The grandparents assert that the chancellor incorrectly discounted an actual advantage

that should have been awarded to them. They argue that the fact that S.G. was a homemaker

should have weighed in their favor, because she could have given full-time care to G.L.

¶34.   In the chancellor’s analysis, he stated that S.G. did not work outside the home, and

also acknowledged that J.A.G. was a senior electrician, working approximately forty hours

a week (Monday through Thursday). The chancellor also noted that B.T. had been employed

for the past eight years at Air Products & Chemicals, and C.T. had managed the same dental

office for over thirteen years, working Monday through Thursday. However, the chancellor

determined that while S.G. could provide more daily care, G.L. was in preschool and was

adequately provided for while the foster parents were at work.

¶35.   We find no abuse of discretion with the chancellor’s findings or analysis of this factor.

              D.      Stability of the Home

¶36.   Further, the chancellor noted that G.L., the foster parents, and their two sons lived in

a newly built, five-bedroom, three-bath home. G.L. has her own room and toys. The foster

parents testified that they have a support system consisting of several family members to help

care for G.L., and that G.L. was familiar with these members of their family. Therefore, the


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chancellor found that the foster parents had extensive family to assist in rearing G.L.,

whereas the grandparents presented no evidence of additional family support. As a result,

the chancellor found this factor slightly weighed in favor of the foster parents.

¶37.   Accordingly, we find no abuse of discretion with the chancellor’s analysis of the

factor. Furthermore, this Court has held:

       An Albright analysis is not premised solely on a scoring system to determine
       which parent “wins,” and our review for manifest error is not a mechanical
       check on the chancellor’s score card to see if she “tallied” each parent’s score
       correctly. Instead, we ask whether the chancellor considered all relevant facts,
       giving deference to the weight she assigns each factor.

In re N.B., 135 So. 3d at 227 (¶30) (quoting May v. May, 107 So. 3d 1052, 1054 (¶8) (Miss.

Ct. App. 2013)).

¶38.   Additionally, the chancellor noted that there was no evidence presented that any of

the parties suffered from immoral character or exhibited any immoral behavior, nor was there

any evidence that the parties had been involved in any illegal activity. The chancellor stated

that both families attended church regularly and enjoyed long marriages. So the argument

the grandparents submit to this Court asserting that the chancellor’s application of the factors

showed their family in a negative light is meritless.

¶39.   Finally, during oral argument, the grandparents conceded that the chancellor’s analysis

of the Albright factors did not amount to manifest error. They also conceded that the

chancellor’s analysis of the Albright factors was thorough, even though they did not agree

with the chancellor’s analysis of the factors.


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¶40.   Accordingly, after review of the record, the chancellor’s written findings and

judgment, and oral argument, we find that the chancellor did not abuse his discretion in his

analysis of the Albright factors. The chancellor made clear findings of fact and conclusions

of law for each factor after weighing the evidence, including the GAL’s report.

¶41.   AFFIRMED.

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




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