                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2002-CA-02106-SCT

BARBARA ANN GUNTER AND ANTHONY HILL

v.

THERESA DAWN HILL GRAY


DATE OF JUDGMENT:                                  11/5/2001
TRIAL JUDGE:                                       HON. STUART ROBINSON
COURT FROM WHICH APPEALED:                         HINDS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                           MELISSA LEE DAY GARDNER
ATTORNEY FOR APPELLEE:                             SHARON PATTERSON THIBODEAUX
NATURE OF THE CASE:                                CIVIL - OTHER
DISPOSITION:                                       REVERSED AND REMANDED - 07/01/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        EN BANC.

        DICKINSON, JUSTICE, FOR THE COURT:

¶1.     The case before us involves the attempt by a mother to have the parental rights of a father, as to

his two daughters, terminated. The basis of the complaint is the father’s sordid, criminal conduct against

the mother, a step-daughter from the mother's previous marriage, and society in general. No allegation is

made of abuse or criminal conduct by the father against either of his two daughters. We believe an initial

observation is appropriate.

¶2.     One of the features of our free society which, at times, results in undesirable consequences, is the

virtually unfettered right of our citizens -- qualified or not -- to bear children and raise them according to
the parents’ value system, with almost no guidance or assistance.1 Parents have the right to select the

religious and moral training for their children, and they exert great influence on their children’s thinking about

such matters as violence, crime, prejudice and the like.

¶3.     Because parental rights are so important, we sharply limit the circumstances under which can be

terminated by the government. This Court, and the judiciary in general, sets forth the rules and criteria for

a non-custodial parent’s visitation with his or her children. We have the prerogative and, indeed, the

obligation to deny a non-custodial parent any visitation rights or contact with his or her children whatsoever

where, to do so, would be in the child’s best interest. However, termination of parental rights is a different

matter. The extinguishment of the substantive right to be regarded by our law as the legal parent of a child

is wholly within the discretion of the Legislature. The only limit to that legislative prerogative lies within the

Constitutions of the United States and the state of Mississippi.

¶4.     This case exemplifies what the majority considers to be a legislative oversight. We find it difficult

to accept that the Legislature, in its wisdom, would not conclude that the parental rights of Anthony Hill

should be terminated. We hasten to state that, if we were allowed by law to terminate parental rights under

the facts and circumstances of this case, we would do so. However, we are bound by the oath of office

to follow the law. The law provides very specific grounds for termination of parental rights. Unfortunately,

Anthony’s conduct does not fit any of the grounds enumerated by the statute. We are not allowed to create

law; we must follow the law given to us by the Legislature.

¶5.     In that regard, we hereby call upon the Legislature to review the facts of this case and reexamine

Miss. Code Ann. § 93-15-103. This Court would welcome an amendment to the statute which adds as



        1
        Indeed, we consider raising our children to be a fundamental right, entitled to great protection.
Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944).

                                                        2
grounds for termination of parental rights a series of abusive incidents involving a spouse2 and/or children.3

But unless and until the statute is amended, we must follow the statute as it currently exists.

                                                  FACTS

¶6.      Theresa and Anthony Hill were divorced on November 5, 1997 on the ground of irreconcilable

differences. Two daughters, were born during the marriage. At the time of the divorce, the parties entered

into an agreement outlining the custodial arrangement, child support obligations and visitation rights of the

parties. Pursuant to the agreement, the parties shared joint legal custody, and Theresa had primary physical

custody. Anthony was ordered to pay $350.00 per month in child support and was granted standard

visitation rights.

¶7.      The relationship between Theresa and Anthony quickly began to deteriorate. On August 12, 1998,

the trial court dismissed competing contempt actions, but ordered a modification of the Final Judgment by

designating a specific place for the exchange of the minor children for visitation purposes. The trial judge

also ordered Anthony to cease his alleged harassment of Theresa and to submit to psychiatric evaluation

and treatment.

¶8.      On December 2, 1999, the trial court again dismissed competing contempt actions, but lowered

Anthony’s child support obligation, and entered a judgment against him for child support arrearage.

¶9.      During the period of time between the divorce and the trial on the merits in the case sub judice,

Theresa filed criminal charges against Anthony on several occasions. On November 20, 1997, Anthony

was found guilty of one count of simple assault against Theresa and one count of assault on Theresa’s




         2
          Where the abuse of the spouse took place in the presence of the child.
         3
          The parent’s children, step-children, or other children.

                                                      3
daughter from a previous marriage. A subsequent charge of simple assault was remanded to the files on

December 9, 1997.

¶10.    On April 19, 1998, Anthony was convicted of one count of simple assault against Theresa and on

July 20, 1998, he was found guilty of stalking Theresa. Additionally, prior to Theresa’s remarriage,

Anthony was convicted of trespassing on the property of her then-boyfriend on two separate occasions.

¶11.    In March, 1999, Anthony was found guilty of telephone harassment and was sentenced to two

years in the custody of the Mississippi Department of Corrections. However, the sentence was suspended,

and he was placed on supervised probation. As a condition of his probation, Anthony was ordered to have

no contact with either Theresa or her new husband, except as in the manner and at the times permitted by

the chancery court. Throughout this time, Anthony continued to exercise his visitation with his daughters

on a regular and routine basis.

¶12.    During February, 2000, Anthony violated his probation by telephoning Theresa, and on March 17,

2000, the trial court found Anthony guilty of a new charge of telephone harassment and revoked his

suspended sentence and remanded him to the custody of the Mississippi Department of Corrections for

two years.

¶13.    Anthony and his mother, Barbara Ann Gunter, filed their petition requesting the Court to grant

“grandparents visitation rights” to Barbara.

¶14.    Theresa generally denied the allegations of Anthony’s petition, and filed a counter-petition,

requesting that Anthony’s parental rights be terminated.

¶15.    On January 20, 2001, the trial court appointed Kate S. Eidt as Guardian Ad Litem for the children,

and instructed her to conduct and independent investigation. On June 11, 2001, Eidt issued her report

finding that a “genuine and strong bond” existed between Anthony and his daughters. Eidt also found that


                                                    4
a relationship existed between the minor children and Barbara, and that Barbara would be in a position to

assist and foster the relationship between Anthony and his daughters during his incarceration.

¶16.    On November 26, 2002, the trial court entered a judgment granting Theresa’s counter-petition to

terminate Anthony’s parental rights and denying Barbara’s petition for grandparent’s visitation rights. It

is from this judgment that Anthony and Barbara appeal.

                                             DISCUSSION

¶17.    On appeal, Anthony and Barbara raise three issues:

        I.       Whether the trial court erred in terminating the natural father’s
                 parental rights.
        II.      Whether the trial court erred in denying grandparent visitation.
        III.     Whether the trial court failed to issue findings of fact sufficient to
                 support its ruling and failed to provide a reason for not adopting
                 the recommendation of the Guardian Ad Litem.

¶18.    On an appeal of termination of parental rights, the standard of review is limited. S.N.C. v. J.R.D.,

755 So. 2d 1077, 1080 (Miss. 2000). “The chancellor’s findings of facts are viewed under the manifest

error/substantial credible evidence test.” Id. (citations omitted). This Court “ask[s] not how we would

have decided the case ab initio but whether there be credible proof from which a rational trier of fact may

have found abandonment by clear and convincing evidence.” Id. (citation omitted).

¶19.    The reasons for which parental rights may be terminated are controlled by the Legislature. The

courts have no right, authority or power to add to those reasons. Miss. Code Ann. § 93-15-1034 states

in pertinent part:

        (3) Grounds for termination of parental rights shall be based on one or more of the
        following factors:


        4
       The version of this statute in effect at the time of the events of this case was enacted in 1998.
Laws, 1998, ch. 516, Section 10.

                                                     5
               (a) A parent has deserted without means of identification or abandoned a child as
       defined in Section 97-5-1,5 or

              (b) A parent has made no contact with a child under the age of three (3) for six (6)
       months or a child three (3) years of age or older for a period of one (1) year; or

              (c) A parent has been responsible for a series of abusive incidents concerning one
       or more children; or

                                                  ***

               (f) When there is an extreme and deep-seated antipathy by the child toward the
       parent or when there is some other substantial erosion of the relationship between the
       parent and child which was caused at least in part by the parent’s serious neglect, abuse,
       prolonged and unreasonable absence, unreasonable failure to visit or communicate, or
       prolonged imprisonment; or

                (g) When a parent has been convicted of any of the following offenses against his
       natural or adopted child: (i) rape of a child under the provisions of Section 97-3-65, (ii)
       sexual battery of a child under the provisions of Section 97-3-95(c), (iii) touching a child
       for lustful purposes under the provisions of Section 97-5-23, (iv) exploitation of a child
       under the provisions of Section 97-5-31, (v) felonious abuse or battery of a child under
       the provisions of Section 97-5-39(2), or (vi) carnal knowledge of a step or adopted child
       or a child of a cohabitating partner under the provisions of Section 97-5-41. . . .

In its judgment entered on November 26, 2002, the trial court held:

       The Court finds that Mississippi law requires that the Court find by clear and convincing
       evidence that a party whose rights are sought to be terminated should be terminated. The
       Court further finds that the evidence in this case is not only clear and convincing, but
       overwhelming. Therefore, the Court finds, by clear and convincing evidence that the
       Petitioner, ANTHONY STEVE HILL, has failed and refused to pay his child support
       obligation, has failed to maintain a policy of medical insurance coverage in his minor
       children, and has failed to attempt to communicate with his minor children in one and one-
       half years, and therefore, the parental rights of the Petitioner, ANTHONY STEVE HILL,
       should be, and hereby are, terminated as to the minor children.




       5
        Abandonment under Miss. Code Ann. § 97-5-1 makes it a crime to leave a child on the street,
or elsewhere, with the intent to abandon it.

                                                    6
¶20.    Anthony was incarcerated in February 2000, and the hearing regarding parental rights and

grandparent visitation took place on November 5, 2001. The chancellor stated that Anthony had “failed

to attempt to communicate with his minor children in one and one-half years.”

¶21.    Anthony contends that he did not abandon his children. This Court has defined abandonment as

“any conduct by a parent which evinces a settled purpose to forego all duties and relinquish all parental

claims to the child.” S.N.C., 755 So. 2d at 1081. “The test is an objective one: whether under the totality

of the circumstances . . . the natural parent has manifested [his] severance of all ties with the child.” Id.

¶22.    The record demonstrates that Anthony has not been the ideal husband, ex-husband or parent.

However, it fails to show that Anthony has abandoned the children. Through testimony, it was clearly

demonstrated that Anthony exercised his visitation regularly and routinely until the time of his incarceration.



¶23.    As to Anthony’s relationship with the children, the Guardian Ad Litem stated:

        While I believe that it will be difficult, more likely impossible, to allow Teresa [sic] and
        Steve [Anthony] to ever have contact with each other in the future, I do find that there
        exists a genuine and strong bond between the girls for their Dad. They readily express
        their love for him and thus there exists a loving relationship between the three of them.
        Furthermore, this relationship has been verified by every person that I have interviewed,
        including Teresa [sic] Gray.

¶24.    As part of Anthony’s sentence, he was prohibited from making any contact with Thersa or her

husband without court approval. Anthony contends that any attempts to contact the children, i.e., telephone

calls or messages, would have resulted in contact with Theresa, thereby placing him at risk of additional

charges and penalties. However, Theresa contends that Anthony was never ordered to refrain from

communicating with his children. Theresa contends that any attempt at sending letters, birthday cards,




                                                      7
Christmas presents or contacting the children by telephone would not have required that he contact

Theresa.

¶25.     The Guardian Ad Litem reported that, following Anthony’s imprisonment, Theresa did not allow

the girls to visit with Gunter. Therefore, we find that Anthony’s only realistic means of contacting the

children would have been at Theresa’s home, which placed Anthony at risk of contact with Theresa.

¶26.     In recommending that Gunter be granted visitation rights during Anthony’s incarceration, the

Guardian Ad Litem stated:

         Mrs. Gunter suggested that if she were afforded to [sic] opportunity to have weekend
         visitation with the girls, then [Anthony] could call her and allow him to speak with the girls
         which would be a reasonable way to re-open communication between the girls and their
         father as long as there was no mention of their mother or her husband. The girls could also
         write to him and he could respond to them, but only at his mother’s address and again as
         long as there was no mention of their mother or her husband.

¶27.     It appears that the Guardian Ad Litem recognized the communication problems between Anthony

and his children because of the potential contact with Theresa. However, the chancellor stated from the

bench:

         Well, I’ll have to say this. Every single witness’ testimony I’ve heard has been
         overwhelming to the effect that Mr. Hill has totally failed to carry out his obligations to his
         children. He’s refused to pay any child support. We heard that on the tape. He said he
         wasn’t going to. He’s obviously in contempt of court. But he also, according to the
         testimony that’s been presented, has failed to try to communicate with them in any way
         since a year and a half ago. He’s done nothing. It would appear to me - - and this is just
         speculation on my part - - that perhaps the driving force behind this may be his mother
         who was seeking grandparent visitation.
                  But the law requires that the Court find by clear and convincing evidence that a
         party whose rights are sought to ne terminated should be terminated. In this case I think
         it was not only clear and convincing, but it was overwhelming. And this Court is obligated
         to look out for the best interests of the children. And I’m going to do my duty and declare
         his parental rights terminated.




                                                       8
¶28.    The chancellor made no mention regarding communication with the children other than Anthony

had not communicated with them for a year and a half. In prohibiting Anthony from having any contact with

Theresa, the chancellor made no provision for Anthony to contact his children under the circumstances.

There was testimony that Anthony communicated and exercised his visitation rights up until the time of his

incarceration. Furthermore, there was an effort on Anthony’s part to have his mother granted visitation

rights in which he would have been able to have contact with his children while she had them. Therefore,

this Court finds that Anthony did not abandon his children once he was incarcerated.

¶29.    Theresa points out that this Court has held that “[i]mprisonment, and the resulting conditions, can

be rightfully considered as a significant factor when determining whether rights may be terminated.” Vance

v. Lincoln County Dept. of Pub. Welfare, 582 So. 2d 414, 418 (Miss. 1991). In Vance, the parent

argued that the trial “court erred in terminating her parental rights based solely on her incarceration.” This

Court concluded: “It is clear that the chancellor in this case considered [the parent’s] potentially lengthy

incarceration as one, albiet major, factor in his findings of substantial erosion. This issue is without merit.”

Id. While Theresa’s observations concerning Vance are correct, her case is substantially different. In

Vance, there was evidence that the relationship between the mother and her children had substantially

eroded, and further evidence of indifference in the children’s attitude toward their mother. Furthermore,

the mother inVance was sentenced to (54) years for murder and 30 years for armed robbery. These facts

are quite different from this case.

¶30.    Theresa raises the fact that Anthony was convicted of simple assault against her minor daughter

from a previous marriage. His step-daughter testified at trial regarding abuse:

        Q. Okay. . . ., let me ask you. From time to time when he got violent, would he ever get
        violent at you?


                                                       9
        A. Occasionally, yes.

        Q. Okay. And what did that amount to, please?

        A. If I had done something wrong, he would hit me. I mean spank me.

        Q. Like spanking or something, like fuss and swat your butt.

        A. Uh-huh. He’s never been abusive, like hitting me.
        ...

        Q. Tracy, when Mr. Folse was questioning you, you said that he never hit you. Are you
        saying he never hit you in punishment?

        A. Whenever I did something bad. This is prior to all the abuse that happened.

        Q. All right. So there were later instances when he actually struck you.

        A. He struck me on my face. But he was trying to hit my mom, but he had missed,
        because I was trying to pull him off my mom.

¶31.    This testimony clearly sets forth that Theresa failed to prove by clear and convincing evidence that

Anthony engaged in a series of abuse against Tracy. Furthermore, there were allegation of Anthony

touching or attempting to touch Tracy in an inappropriate manner. If this is true, then charges should have

been brought and, if proven, Anthony, should have been dealt with appropriately. However, no charges

were filed against Anthony. Even if charges had been brought, and Anthony had been convicted, the

statute in effect at the time would not have allowed termination of parental rights for Anthony’s behavior

toward a step-daughter, and the statute covered only natural and adopted children.6

¶32.    Theresa argues that Anthony’s violence toward others meets the requirements of § 93-15-

103(3)(c). She states that a parent who “has been responsible for a series of abusive incidents concerning

one or more children” supports the termination of his rights because the abusiveness, violent rages and

        6
         The statute has since been amended to include as grounds for termination of parental rights the
conviction for certain enumerated sexual behavior against any child.

                                                    10
uncontrolled temper affected the children. There was testimony that during his rages, the children were

frightened, scared, cry and yell for him to stop. There was also testimony, however, that the abuse was

never directed towards Anthony’s children.

¶33.    It is very tragic and disturbing that these children have been exposed to abuse directed toward their

mother. However, as stated earlier, it is within the exclusive prerogative of the Legislature to determine the

circumstances which merit termination of parental rights. Anthony’s conduct does not meet the “series of

abusive incidents” as required by § 93-15-103(3).

¶34.    Theresa testified that her specific reason for requesting a termination of Anthony’s parental rights

was:

        I cannot feel comfortable with [our daughters] seeing this man. I am terrified of what he
        may do later on or now. His drinking, his abusiveness towards woman, his rage, his
        hatred. I don’t want them to witness that. I want them to grow up normal. I want them
        to be okay. And I don’t think they can be okay visiting with this man. I don’t want them
        to be psychologically scarred. And I especially don’t want them to be given beers,
        cigarettes or fondled.

¶35.    We think Theresa’s words are commendable and full of wisdom. However, fear of what Anthony

may do later is not grounds for termination of parental rights pursuant to § 93-15-103. We hasten to again

point out that the matter before us involves the question of whether parental rights may be terminated. We

do not here address in any manner the question of whether, and under what conditions, Anthony may visit

with the children.

¶36.    We find that Theresa did not present clear and convincing evidence which would justify termination

of parental rights as provided by § 93-15-103.




                                                     11
¶37.    Since this Court holds that the trial court erred in terminating the parental rights, the issue of

grandparent visitation is moot. Therefore, we will not address that issue; however, a discussion regarding

the Guardian Ad Litem’s report and recommendation is warranted.

        II.      Whether the trial court failed to issue findings of fact sufficient to
                 support its ruling and failed to provide a reason for not adopting
                 the recommendation of the Guardian Ad Litem.

¶38.    Anthony points out that the trial court failed to make a finding on the record of the reasons for not

adopting the recommendation of the Guardian Ad Litem. Theresa contends that the guardian ad litem’s

view is only additional information to aid the chancellor in making the decision on the merits of the matter

in dispute, a decision which ultimately lies with the chancellor. Theresa further contends that the chancellor,

as fact-finder, should consider the evidence presented by the guardian ad litem, as well as all other relevant

evidence. While this may be correct, this Court has held:

        [T]he proper function or role of a guardian ad litem as one who ‘investigates, makes
        recommendations to a court, or enters reports’ and is ‘a representative of the court
        appointed to assist it in properly protecting the interests of an incompetent person.

S.N.C., 755 So. 2d at 1082 (citations omitted). Furthermore, this Court held:

        that a chancellor shall include at least a summary review of the qualifications and
        recommendations of the guardian as litem in the court’s findings of fact and conclusions of
        law. Further, we hold that when a chancellor’s ruling is contrary to the recommendation
        of a statutorily required guardian ad litem, the reasons for not adopting the guardian as
        litem’s recommendation shall be stated by the court in the findings of fact and
        conclusions of law.

Id. (emphasis added). Miss. Code Ann. § 93-15-107 (Supp. 2003) states in pertinent part: “A guardian

ad litem shall be appointed to protect the interest of the child in the termination of parental rights.”

Therefore, since the appointment of the guardian ad litem was mandatory in the case sub judice, the

chancellor erred by failing to state the reasons for not adopting the guardian as litem’s recommendation.



                                                     12
                                             CONCLUSION

¶39.    The chancellor erred in terminating Anthony’s parental rights and in failing to state the reasons for

not adopting the guardian ad litem’s recommendation. Therefore, we reverse the chancellor's judgment,

and we remand this case for further proceedings consistent with this opinion.

¶40.    REVERSED AND REMANDED.

     SMITH, C.J., COBB, P.J., AND GRAVES, J., CONCUR. WALLER, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION. JOINED BY CARLSON AND
RANDOLPH, JJ., DIAZ AND EASLEY, JJ., NOT PARTICIPATING.


        WALLER, PRESIDING JUSTICE, DISSENTING:

¶41.    I respectfully dissent from the majority's finding that termination of Anthony's parental rights is not

appropriate. Anthony's intentionally destructive and criminal conduct convinces me that the learned

chancellor's finding that Anthony was an unfit father was correct.

¶42.    The record shows that Anthony is guilty of two separate counts of simple assault against his ex-wife

Theresa; one count of simple assault against Theresa's minor daughter; one count of stalking Theresa, two

separate counts of trespass, and two separate counts of telephone harassment against Theresa. Anthony

was physically and mentally abusive towards Theresa and "during his rages, the children were frightened,

scared, [and cried and yelled] for him to stop." But the majority minimizes this behavior because "the abuse

was never directed towards Anthony's children."

¶43.    However, Anthony's uncontrolled rages and habitual criminal conduct toward the children's mother

has created an atmosphere in which the children cannot help but be negatively affected. Whether Anthony

has physically abused the children should be irrelevant where the children cannot be shielded from his




                                                     13
emotional abuse. He has shown no signs of remorse for his behavior, and even though he has presumably

completed court-ordered therapy, his relentless battle against authorities and his ex-wife have continued.

¶44.    Finally, the record shows that Anthony has "refused" to pay court-ordered child support. The only

evidence which reflects positively on Anthony is that he seems to have a loving relationship with his two

daughters. However, this evidence is vastly overshadowed by his criminal and destructive conduct.

¶45.    The evidence clearly supports the chancellor's termination of Anthony's parental rights.

Accordingly, I would affirm the chancellor's judgment.

        CARLSON AND RANDOLPH, JJ., JOIN THIS OPINION.




                                                   14
