                       IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2011-CT-01472-SCT

JIMMY RAY CHISM, JR.

v.

ABBY GALE MORRIS CHISM BRIGHT

                                 ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                               09/08/2011
TRIAL JUDGE:                                    HON. C. MICHAEL MALSKI
TRIAL COURT ATTORNEYS:                          J. MARK SHELDON
                                                JAK M. SMITH
COURT FROM WHICH APPEALED:                      UNION COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                        GREGORY M. HUNSUCKER
                                                JAK M. SMITH
ATTORNEYS FOR APPELLEE:                         J. MARK SHELDON
                                                JANA L. DAWSON
NATURE OF THE CASE:                             CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                    REVERSED AND REMANDED - 12/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      LAMAR, JUSTICE, FOR THE COURT

¶1.   Jimmy Ray Chism Jr. challenges the termination of his parental rights to his son,

Johnny.1 Because we find that Jim’s parental rights were wrongfully terminated, we reverse

the judgments of Court of Appeals and the chancery court and remand this case to the Union

County Chancery Court.




      1
          We use a fictitious name for the minor child to protect his identity.
                        FACTS AND PROCEDURAL HISTORY

¶2.    Jimmy Ray Chism Jr. and Abby Gale Morris Chism Bright married on October 17,

2003.2 They had one child, Johnny, on March 17, 2004, and they divorced on March 10,

2008. Under the divorce decree, the parties had joint legal custody of Johnny; Abby had

primary physical custody, and Jim had regular, unrestricted visitation. From March 2008 to

July 4, 2008, Jim executed his visitation rights without incident.

¶3.    On July 4, 2008, Jim and Abby separately attended a party at Darden Lake. Johnny

stayed with Jim’s parents, Dr. Jimmy Ray Chism Sr. and Terri Chism, at their cabin near

Darden Lake. On the morning of July 5, Jim picked Johnny up from his parents’ cabin and

drove him to a nearby McDonald’s. While in the drive-through line, Jim fell asleep with the

car in park. The police were called, and Jim was arrested for public intoxication. Johnny

was not injured during the incident, and Terri picked him up from the scene.

¶4.    On July 25, 2008, Abby filed an emergency petition for modification of Jim’s

visitation rights, based on the July 5 incident. On August 18, 2008, the chancellor entered

an order for modification of visitation which: (1) required that all Jim’s visitation periods be

supervised by Terri; (2) prohibited alcohol or drugs from being in Johnny’s presence during

his visitation periods with Jim; and (3) prohibited Jim from operating any motor vehicle with

Johnny as a passenger. The order also stated that:

       If Jimmy Ray Chism, Jr. fails to report to United States Army training facilities
       in Fort Benning, Georgia on September 3, 2008, all visitation will cease[,] and
       as a condition for reinstatement Jimmy Ray Chism, Jr. shall comply with all
       of the Union County Department of Human Services recommendations,


       2
        We refer to the parties and to some of the other members of the Chism family by first name
to avoid confusion.

                                                2
       including supplying a hair sample for DNA drug testing at a DHS approved
       medical facility, and he shall be committed to an in-patient treatment facility
       for a period of not less [than] thirty (30) days.

Jim did not report to the United States Army, and he did not begin satisfying the court’s

requirements to reinstate his visitation until July 15, 2009, when he admitted himself into

Haven House for alcohol treatment. He spent fifty-one days at Haven House and, upon his

discharge in September 2009, he attempted to resume his visitation with Johnny. When

Abby did not respond to his requests, Jim filed a complaint for citation of contempt. In

response, Abby filed a countercomplaint for termination of Jim’s parental rights.

¶5.    Jonathan Martin was appointed as Johnny’s guardian ad litem on November 20, 2009.

In accordance with Martin’s recommendation, the chancellor awarded Jim and his family one

hour of visitation on December 25, 2009; Jim and his family exercised their visitation rights

without incident. On January 21, 2010, Jim again moved for additional visitation with

Johnny, representing to the court that he had complied with the requirements of the August

18, 2008, modification order, and that the Christmas Day visitation had been a success.

¶6.    Ultimately, the chancellor allowed Jim to have supervised visitation with Johnny on

two occasions at his parents’ home in early 2010, and both visits went well. After Jim failed

two drug tests in the spring of 2010, Martin encouraged him to go to the National Counsel

on Drugs and Alcohol Dependancy (NCADD) in Tupelo, Mississippi. Jim presented himself

to NCADD in May 2010, and the director recommended him for inhouse treatment. Shortly

thereafter, Jim burglarized one of his neighbor’s homes while intoxicated. On June 27, 2010,

Jim admitted himself into the Fairland treatment facility in Dublin, Mississippi, where he

stayed for ninety-five days until he was discharged on October 1, 2010.


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¶7.    Trial on Jim’s complaint for citation of contempt and Abby’s countercomplaint for

termination of Jim’s parental rights began on October 18, 2010. Jim testified that he believed

he was on the road to recovery because of the care he received at Fairland, his new anti-

depressant prescription, a renewed spiritual commitment, and his support system, consisting

of his family, girlfriend, and sponsor. Trial adjourned,3 and on November 19, 2010, Jim

consumed large amounts of alcohol and Xanax and broke into a neighbor’s house, where he

passed out. A neighbor found him unresponsive and called 911. Medical personnel

resuscitated Jim, and he was later arrested.

¶8.    Trial recommenced on July 11, 2011, and concluded on July 14.4 When trial resumed,

Jim admitted to committing the criminal acts for which he was arrested on November 19,

2010, and he also admitted to adulterating drug-test samples he had provided back in May

of 2010. Jim testified that being incarcerated had caused him to hit rock bottom and had

truly changed his life for the better. He also stated that, despite his absence, his relationship

with Johnny had not deteriorated and that he and Johnny still loved each other very much.

He admitted that, before his incarceration, he thought he was doing everything he needed to

do to stay sober, but that he still relapsed. He admitted that he was an alcoholic and said he

believed he had been an addict his whole life. He also admitted that Johnny needed stability

in his life and that C.J. Bright, Abby’s husband, was a good man who provided Johnny with

that stability. But Jim also emphasized that, besides the July 5 incident, he had never


       3
           The chancellor’s order does not indicate why the trial was continued.
       4
       Dr. Chism’s and Terri’s separate complaint for grandparents’ visitation was consolidated
with Abby’s countercomplaint to terminate Jim’s parental rights while the trial was recessed from
October 18, 2010, to July 11, 2011.

                                                  4
committed a crime or been intoxicated around Johnny, and he agreed to abide by any

visitation restrictions the court deemed necessary.

¶9.    In addition to his own testimony, Jim provided testimony from his parents, his sister,

and his girlfriend. All four acknowledged that Jim had a substance-abuse problem, but all

four also believed he was on the road to recovery and that terminating his parental rights was

not in Johnny’s best interest. Jim also called Dr. Sam Fleming, who was tendered and

accepted as an expert in neuropsychology. Dr. Fleming diagnosed Jim with substance-

induced bipolar disorder and testified that, with the proper treatment regimen, Jim could

overcome his disorder and become a successful member of society. Notably, Dr. Fleming

did not believe Jim had an alcohol addiction. But he did acknowledge that, based on Jim’s

history, he “ha[d] a very poor prognosis for not using alcohol or drugs again.”

¶10.   Abby, Bright, and Martin testified in favor of terminating Jim’s parental rights. Abby

testified that Johnny needed a “steady father” in his life, not a father who reemerged every

six months between bouts of drunkenness, rehabilitation, and incarceration. Bright testified

that he wanted to adopt Johnny and would be able to care for him financially without the

benefit of child support. Finally, Martin testified that he believed the grounds for termination

were shown by clear and convincing evidence and that termination was appropriate because:

       The minor child would clearly suffer emotional distress for the coming years
       if his father, [Jim], continued to travel in and out of his life at the convenience
       and scheduling of his limited periods of sobriety. The minor child would
       suffer emotional distress as the subject of continued . . . litigation related to his
       father’s visitation . . . I believe it’s in the best interest of the minor child to
       have a father who is stable, has sound moral judgment, who can contribute to
       his upbringing, to his well being; for example, the simple ability to be at
       liberty to talk to his teachers or take him to extracurricular activities and to
       impart sound wisdom. The last reason I would cite at this time that it would


                                                5
       be in his best interest for a termination of parental rights and adoption is that
       in the event that the minor child’s mother should meet an untimely passing, a
       termination at this time of [Jim]’s parental rights and allowed adoption by Mr.
       Bright would provide the minor child stability, as his father would be present.

¶11.   On September 8, 2011, the chancellor entered an order that: (1) terminated Jim’s

parental rights; 5 (2) awarded Dr. Chism and Terri grandparent visitation; and (3) provided

that Jim could have contact with Johnny after Jim had been sober for a six-month period

following his release from jail. Jim appealed, and the Court of Appeals affirmed the

termination. See Chism v. Bright, 2013 WL 2166104 (Miss. Ct. App. May 21, 2013). This Court

then granted Jim’s petition for certiorari.

                                 STANDARD OF REVIEW

¶12.   A chancellor’s findings of fact in a termination-of-parental-rights case are reviewed

under the “manifest error/substantial credible evidence” test and will not be reversed so long

as “credible proof exists to support the chancellor’s finding of fact by clear and convincing

evidence.” W.A.S. v. A.L.G., 949 So. 2d 31, 34 (Miss. 2007). But questions of law such as

statutory construction are subject to de novo review, and if a chancellor misapprehends the

controlling rules of law or acts pursuant to a substantially erroneous view of the law, reversal

is proper. Ethredge v. Yawn, 605 So. 2d 761, 764 (Miss. 1992).

                                   LAW AND ANALYSIS


       5
        The chancellor found that Jim’s parental rights should be terminated under Mississippi Code
Section 93-15-103(3)(e)(i), which states: “(3) Grounds for termination of parental rights shall be
based on one or more of the following factors: (e) The parent exhibits ongoing behavior which
would make it impossible to return the child to the parent’s care and custody: . . . (i) Because the
parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or
drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation,
which condition makes the parent unable to assume minimally, acceptable care of the child[.]” Miss.
Code Ann. § 93-15-103(3)(e)(i) (Rev. 2013).

                                                 6
¶13.   Parents have a “fundamental liberty interest . . . in the care, custody, and management

of their child” that cannot be taken away without clear and convincing evidence of the

required statutory grounds for termination of parental rights. Santosky v. Kramer, 455 U.S.

745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see also J. Jackson and M. Miller,

Encyclopedia of Mississippi Law § 78:39 (2002) (citing Miss. Code Ann. § 93-15-103(3)).

State statutes providing for the termination of parental rights are subject to strict scrutiny and

“[c]ourts may not add to the enumerated grounds.” Deborah H. Bell, Bell on Mississippi

Family Law 409 (2005) (citing Gunter v. Gray, 876 So. 2d 315 (Miss. 2004)); see also Rias

v. Henderson, 342 So. 2d 737, 739 (Miss. 1977) (holding that statutes affecting fundamental

constitutional rights are subject to strict scrutiny).

¶14.   This Court has stated that “[b]ecause parental rights are so important,” the

“circumstances under which [those rights] can be terminated by the government” are “sharply

limit[ed.]” Gunter v. Gray, 876 So. 2d at 317. Title 93, Chapter 15 of the Mississippi Code

sets out the requirements and procedure for the termination of parental rights. See Miss.

Code Ann. §§ 93-15-101 through 93-15-111 (Rev. 2013).

¶15.   As mentioned above, the chancellor found that Jim’s parental rights should be

terminated because he exhibited “ongoing behavior which would make it impossible to return

the minor child to his care and custody because he has a diagnosable condition, specifically

alcohol and drug addiction, unlikely to change within a reasonable time which makes him

unable to assume minimally, acceptable care of the child . . . .” But neither the chancellor

nor the Court of Appeals addressed subsection (1) of Section 93-15-103, which sets out three




                                                7
prerequisites that must be met before the court may invoke any specific ground for

termination. Section 93-15-103(1) states:

       (1) When a child has been removed from the home of its natural parents and
       cannot be returned to the home of his natural parents within a reasonable
       length of time because returning to the home would be damaging to the child
       or the parent is unable or unwilling to care for the child, relatives are not
       appropriate or are unavailable, and when adoption is in the best interest of the
       child, taking into account whether the adoption is needed to secure a stable
       placement for the child and the strength of the child’s bonds to his natural
       parents and the effect of future contacts between them, the grounds listed in
       subsections (2) and (3) of this section shall be considered as grounds for the
       termination of parental rights. The grounds may apply singly or in
       combination in any given case.

Miss. Code Ann. § 93-15-103(1) (Rev. 2013) (emphasis added). See also In Re Dissolution

of Marriage of Leverock and Hamby, 23 So. 3d 424, 428 (Miss. 2009). This Court

previously has categorized the three prerequisites in subsection (1) as follows:

       (1) the child has been removed from the home of its natural parents and cannot
       be returned to the home of his natural parents within a reasonable length of
       time or the parent is unable or unwilling to care for the child; (2) relatives are
       not appropriate or are unavailable; and (3) adoption is in the best interest of the
       child.

Leverock, 23 So. 3d at 428 (emphasis added).

¶16.   Here, it is undisputed that Johnny was not “removed from the home of his natural

parents.” And we also do not find from this record that Jim is “unable or unwilling” to care

for Johnny. First, the chancellor’s finding that Jim was “unable to assume minimally

acceptable care” 6 of Johnny is belied by the fact that he also allowed Jim to have contact with

Johnny after he is sober for six months. Neither Abby nor anyone else objects to this.



       6
        To be clear, the chancellor was analyzing this under Section 93-15-103(3), instead of
Section 93-15-103(1).

                                               8
Simply because Jim might not be the best choice to be Johnny’s full-time custodial parent

certainly does not mean that he is “unable to care” for Johnny. This Court “has never

allowed termination of parental rights only because others may be better parents.” W.A.S.,

949 So. 2d at 35. Second, it is undisputed that Jim wants to be a part of Johnny’s life and that

they have a very loving relationship, which evidences that Jim is not unwilling to care for

him.

¶17.   Moreover, we affirm the overarching premise that termination of parental rights is a

last resort. This intent is evidenced by the Legislature in Section 93-15-103(4), which states:

       Legal custody and guardianship by persons other than the parent as well as
       other permanent alternatives which end the supervision by the Department of
       Human Services should be considered as alternatives to the termination of
       parental rights, and these alternatives should be selected when, in the best
       interest of the child, parental contacts are desirable and it is possible to secure
       such placement without termination of parental rights.

Miss. Code Ann. § 93-15-103(4) (Rev. 2013) (emphasis added). In short, Abby has not

proven the statutory prerequisites found in Section 93-15-103(1) that must be met. As such,

we decline to address the specific ground for termination analyzed by the chancellor, or

whether termination is in Johnny’s best interest.         For these reasons, we reverse the

termination order and remand this case to the Union County Chancery Court for further

proceedings consistent with this opinion.

¶18.   REVERSED AND REMANDED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.




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