                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2007-CT-02065-SCT

WILLIAM DANIEL VAUGHN

v.

CONNIE LYNN DAVIS, INDIVIDUALLY, AND AS
MATERNAL GRANDMOTHER AND NEXT
FRIEND OF DANIELLE LYNN VAUGHN

                            ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                       08/01/2007
TRIAL JUDGE:                            HON. DAN H. FAIRLY
COURT FROM WHICH APPEALED:              RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                 WILLIAM P. FEATHERSTON, JR.
ATTORNEY FOR APPELLEE:                  SHARON PATTERSON THIBODEAUX
NATURE OF THE CASE:                     CIVIL - DOMESTIC RELATIONS
DISPOSITION:                            REVERSED AND REMANDED - 06/17/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      RANDOLPH, JUSTICE, FOR THE COURT:

¶1.   William Daniel Vaughn (“Vaughn”) appealed from the judgment of the Rankin

County Chancery Court awarding physical custody of his daughter, Danielle Lynn Vaughn

(“Danielle”), to the child’s maternal grandmother, Connie Lynn Davis (“Connie”). The

Court of Appeals affirmed. Vaughn v. Davis, 2009 WL 1664622 (Miss. Ct. App. June 16,

2009). This Court granted certiorari. Vaughn v. Davis, 27 So. 3d 404 (Miss. 2010).

                      FACTS AND PROCEDURAL HISTORY
¶2.    Except as otherwise noted, the Court of Appeals correctly and fully laid out the factual

and procedural background as follows:

       Danielle was born in October 2000 out of wedlock. Danielle and her mother,
       Theresa Davis (Theresa) lived with Connie, the maternal grandmother, since
       Danielle's birth. Theresa died as the result of a car accident in March 2002,
       when Danielle was approximately seventeen months old. Danielle's birth
       certificate lists Vaughn as her father. Vaughn's paternity was further
       established through a DNA test. Vaughn and Theresa never married. At the
       time of Theresa's death, Theresa and Danielle lived with the grandmother,
       Connie. Vaughn lived with two roommates in an apartment. He attended
       school and worked full time. After Theresa's death, Vaughn and Connie
       discussed the physical custody arrangements for Danielle. Vaughn and Connie
       mutually agreed that Connie would keep Danielle until Vaughn had finished
       school and gotten back on his feet. After their agreement, Vaughn failed to
       visit Danielle regularly and paid only $100 of support for Danielle prior to
       Connie's filing her petition for custody. He also failed to voluntarily seek
       custody of his daughter when he got back on his feet.

Vaughn v. Davis, 2009 WL 1664622, at *1. The amount of Vaughn’s monetary support was

disputed.1 Although Vaughn was in school and living with roommates at one time, that

situation did not continue. He testified that in the years following Theresa’s death, he had

(1) attended school only one semester; (2) never received a degree; (3) lived by himself in

an apartment and then with a girlfriend; (4) worked full-time, earning $300-400 per week,

with the exception of three months of unemployment.

¶3.    The Court of Appeals continued as follows:

       At some point after Theresa's death, Connie tried to obtain medical insurance
       for Danielle. The insurance company denied coverage because Connie was
       not Danielle's legal guardian. On August 18, 2004, when Danielle was nearly



       1
       Connie testified that he made a one-time contribution of $100 at the time of
Theresa’s funeral. Connie and her mother, who lived next door, kept a contemporaneous log
of Vaughn’s contribution and contacts. Vaughn testified that he gave cash and in-kind
contributions, such as clothes, food, and diapers, but could provide no proof.

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       four years old, Connie filed a petition for custody and emergency temporary
       relief. Vaughn and Connie signed an agreed temporary order dated August 20,
       2004, granting Connie temporary custody of Danielle.

Id.

¶4.    In her petition for custody, Connie listed several reasons why she should be granted

custody, including that Vaughn had “gone as long as four months without any contact

whatsoever with his minor child, either in person or via any other method of

communication.” Connie also asked that Vaughn be required to pay child support and to

maintain a life-insurance policy, with Danielle as the beneficiary. Connie did not request

termination of Vaughn’s parental rights. The “Agreed Order for Emergency Temporary

Custody and Other Relief” granted Connie the “temporary care, custody and control” of

Danielle, subject to Vaughn’s “temporary visitation rights” pending a final hearing, which

was set for February 16, 2005. Vaughn acknowledged paternity at that time. The order did

not address child support. Vaughn signed the agreed order on the advice of his then-attorney.

He testified that his understanding of the order was that “the judge has to hear the whole case

and then he’ll decide who Danielle lives with. So it was never my understanding or never

my intentions to give up my daughter.” However, he did understand he was “temporarily

giving [Connie] custody.” At the time the agreed order was signed, Vaughn was unemployed

and living with his girlfriend.

¶5.    The custody hearing was continued several times, as a psychologist was appointed to

evaluate Danielle, and a guardian ad litem (“GAL”) was appointed for her. See id. While

awaiting the hearing, Vaughn was granted visitation, which he exercised inconsistently. The

court-appointed psychiatrist reported in 2006 that Vaughn was “inconsistent in his interaction

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with the child. This is evidenced by long periods in which he would not contact her and

periods in which she is not with him in which he does not call or write her. In addition, he

leaves her with others when he does have her.” In a later report, the psychiatrist reported that

Vaughn was “well intentioned,” but his lack of “follow through . . . has been evident.”

Vaughn first began to pay child support a few months after the agreed order. Several months

after testifying that he had already done so, he obtained health insurance for Danielle through

his policy at work.2 Vaughn obtained a life insurance policy, but named his new wife as the

sole beneficiary.

¶6.    Regarding the three-year wait before the hearing, the Court of Appeals stated the

following:

       Vaughn [regained] full-time employment, married Melissa Vaughn, bought a
       home, and had a son with Melissa. The chancery court finally heard Connie's
       petition for custody on August 1, 2007, and entered a final order granting
       [physical] custody of Danielle to Connie. Danielle was nearly seven years old
       at the time of the hearing.

Id. The chancellor granted Connie and Vaughn joint legal custody. Vaughn was allowed

liberal visitation and was required to pay child support and to maintain health insurance for

Danielle.

¶7.    The Court of Appeals continued as follows:

       On appeal, Vaughn argues that the chancellor erred in not giving him the
       benefit of the natural-parent presumption, which arises in custody disputes
       between natural parents and third parties. Grant v. Martin, 757 So. 2d 264,
       265 (¶ 5) (Miss. 2000). Utilizing the standard adopted . . . in Grant, however,




       2
        Vaughn testified that this was a misunderstanding that was worked out with the help
of the GAL. Prior to being covered by Vaughn’s insurance, Danielle was on Medicaid.

                                               4
       the chancellor reasoned that Vaughn relinquished the natural-parent
       presumption . . . .

Id. The Court of Appeals affirmed the chancellor’s order granting physical custody of

Danielle to Connie, finding that (1) Vaughn had “relinquished the natural-parent presumption

when he agreed to allow Danielle to remain in Connie’s custody pending a hearing . . . .”;

and (2) the decision below was “further buttressed by Vaughn’s voluntary and extended

failure to seek custody . . . .” Id.

¶8.    Allowing Grant to control on the facts as presented in the case sub judice would

create a disincentive for parents to allow children to remain temporarily in a safe and stable

environment while custody issues are decided. Pairing the Grant analysis with a finding that

Vaughn had relinquished custody through his inaction is likewise unavailing. The chancellor

made no such finding, but based his analysis solely on the application of Grant. The

chancellor found that Vaughn was neither mentally nor morally unfit to have custody of the

child, nor had he abandoned the child through his inaction. However, because Vaughn had

agreed to the temporary custody order, he had given up the natural presumption, thus

allowing the chancellor to complete an Albright analysis, which favored Connie. See

Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). After finding that Connie stood

“in loco parentis . . . to the child,” the chancellor stated that “the affections of this child have

become so engaged to [Connie] that a severance of that relationship would result in

destroying the best interest of the child.”

                                           ANALYSIS




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

clearly erroneous. . . . A chancellor's conclusions of law are reviewed de novo.” Lowrey v.

Lowrey, 25 So. 3d 274, 285 (Miss. 2009) (citations omitted). We analyze a single issue:

Whether the chancellor erred in denying Vaughn the benefit of a natural-parent presumption

based on his agreeing to the order for temporary custody.

¶10.   “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.” In re Dissolution of

Marriage of Leverock and Hamby, 23 So. 3d 424, 429 (Miss. 2009). The Leverock Court

stated further:

       In Mississippi, 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. K.D.F. v. J.L.H., 933 So.
       2d 971, 980 (Miss. 2006). This presumption is echoed in Mississippi Code
       Section 93-13-1: “The father and mother are the joint natural guardians of their
       minor children and are equally charged with their care, nurture, welfare and
       education. . . . If either father or mother die or be incapable of acting, the
       guardianship devolves upon the surviving parent.” Miss. Code Ann. § 93-13-1
       (Rev. 2004). However, we also recognize that this presumption or preference
       for a natural parent may be rebutted.

Id. at 429-30.

¶11.   The chancellor believed he had only two options. He would have to find Vaughn

immoral or unfit as a parent, or that he had abandoned the child, and then do an Albright

analysis to determine Danielle’s best interests. Or, if he failed to find immorality, unfitness,

or abandonment, he would have to grant custody to Vaughn without regard to Danielle’s best

interests. The chancellor found abandonment through Vaughn’s agreement to temporary

custody. Following this finding, the chancellor determined that Danielle’s best interests were

served by continuing to live in Connie’s home, the only home Danielle had ever known.

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¶12.   We find that the chancellor was not required to make such a stark choice under these

facts. Our custody statute, as cited in Leverock, offers another option, a finding of desertion,

as follows:

       Upon a finding by the court that both of the parents of the child have
       abandoned or deserted such child or that both such parents are mentally,
       morally or otherwise unfit to rear and train the child the court may award
       physical and legal custody to . . . [t]he person in whose home the child has
       been living in a wholesome and stable environment. . . .

Miss. Code Ann. § 93-5-24(1)(e)(i) (Rev. 2004) (emphasis added); see Leverock, 23 So. 3d

at 430. Thus, the chancellor could have treated Vaughn’s inaction prior to the agreed order

as desertion of Danielle. If so, Vaughn would have forfeited the presumption he had as her

natural father, even though his actions/inactions do not compare to the behavior our courts

have found to constitute abandonment or constructive abandonment. Governale v. Haley,

228 Miss. 271, 275-78, 87 So. 2d 686, 687-89 (Miss. 1956) (abandonment, leaving child with

a relative for ten years); Loomis v. Bugg, 872 So. 2d 694, 695-96 (Miss. Ct. App. 2004)

(unfitness); Hill v. Mitchell, 818 So. 2d 1221, 1222-23 (Miss. Ct. App. 2002) (constructive

abandonment, child allowed to stay in court-ordered temporary physical custody of

grandparents for eleven years). However, desertion, if found, would apply.

¶13.   This Court in Leverock distinguished abandonment and desertion as follows:

       Abandonment is “any conduct on the part of the parent which evinces a settled
       purpose to forego all duties and relinquish all parental claims to the child.”
       [Ainsworth v. Natural Father, 414 So. 2d 417, 419 (Miss.1982).] In defining
       the term “desert,” this Court in Ainsworth noted the following definitions: “2.
       To forsake (a person, institution, cause, etc., having moral or legal claims upon
       one). 3. To forsake one's duty, one's post or one's party.” Id. at 420. This
       Court explained that “abandonment has to do with the relinquishment of a
       right or claim, whereas desertion involves an avoidance of a duty or
       obligation.”

                                               7
Leverock, 23 So. 3d at 430 n.2. The Ainsworth Court cited Webster’s and the Oxford

English Dictionary for the definitions of both words, finding that the “definition of

abandonment in Wright v. Fitzgibbons, [198 Miss. 471, 477-78, 21 So. 2d 709, 710-11

(1945)], seems to include both avoidance of duty and relinquishment of right.” Ainsworth

v. Natural Father, 414 So. 2d 417, 419-20 (Miss. 1982).

¶14.   In Leverock, this Court found 3 that a father had deserted his son by “completely

avoid[ing] both his moral and legal duties and obligations as a father for more than two years.

During this period of time, he showed a complete disregard for the welfare of his young son.”

Leverock, 23 So. 3d at 431. The Leverock Court continued that the father had chosen “‘to

take an extended holiday from the responsibilities of parenthood’ and we find that he should

not now be able to claim the benefit of his status as a natural parent . . . .” Id. at 431-32

(citation omitted). The Court stated that, once “abandonment, desertion, or other acts

demonstrating unfitness to raise a child” are found “by clear and convincing evidence,” the

natural-parent “presumption vanishes, and the court must go further to determine custody

based on the best interests of the child through an on-the-record analysis of the Albright

factors.” Id. at 431. In this Albright analysis, even though the natural parent has lost the

presumption, a court may still consider “society's interest in preserving the natural parent and

child relationship whenever possible,” but a chancellor should consider it as “only one factor,




       3
        Six justices were in the majority, which reversed and rendered the desertion issue.
Leverock, 23 So. 3d at 434. Two justices would have reversed and remanded. See id. at
435-38 (Pierce, J., concurring in part and dissenting in part, joined by Carlson, P.J., joined
in part by Waller, C.J.). Thus, the Court was eight-to-one on the question of reversing the
chancellor’s grant of custody to the father.

                                               8
among many, to be considered. ” Id. The Court instructed the chancellor to consider “the

present circumstances of the parties” in the custody determination, as two years had passed

since the hearing. Id. at 432.

¶15.    It was error here to find that Grant controls. In Grant, a mother relinquished custody

of her three children to their paternal grandparents. See Grant, 757 So. 2d at 264. The

grandparents were appointed as guardians via a chancellor’s order. Two years later, when

the parents divorced, a settlement agreement granting custody of the children to the

grandparents was incorporated into the final judgment of divorce. See id. at 265. More than

two years later, after the mother had remarried, she petitioned for a modification, which was

denied. See id. The Court of Appeals, finding no unfitness or abandonment, reversed and

rendered in the mother’s favor. See id. at 266. This Court reversed the judgment of the

Court of Appeals, setting a new standard “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. (emphasis added). The Court stated

that, in setting the new standard, it did not “want to encourage an irresponsible parent to

relinquish . . . 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 . . . .” Id. The

Grant Court also reaffirmed the principles that (1) “stability in the lives of children is of such

great importance,” and (2) “the polestar consideration in all child custody cases is the best

interest of the child . . . .” 4 Id.


        4
       Webster’s defines “polestar”as “1. Polaris, a star that is vertical or nearly so, to the
pole of the earth, also called North Star. 2. That which serves as a guide or director.”

                                                9
¶16.   The mother in Grant gave up custody of her children through a court of competent

jurisdiction on two different occasions, i.e., the guardianship and the divorce decree. Id. at

264-65. When she gave up custody the first time, she actually was relinquishing physical

custody of the children. Unlike in Grant, Vaughn never had physical custody of Danielle,

thus, he had nothing to relinquish. He merely allowed Connie to retain custody, which was

a proper temporary arrangement, until a hearing could be held. Vaughn could not have

known at that time that three years would elapse before the hearing was held, and that five

years (and counting) would go by before a decision would be made on Danielle’s long-term

custody. Vaughn’s signing this agreement does not equate to abandonment. A comparison

of the temporary nature of this agreement with the guardianship in Grant is flawed. In

Grant, there was a divorce decree, as well as a guardianship order. Id. Here, there was only

a temporary agreement awaiting a hearing.

¶17.   We affirm the chancellor’s finding that Connie stood in loco parentis to Danielle.

“We have defined a person acting in loco parentis as one who has assumed the status and

obligations of a parent without a formal adoption.” Leverock, 23 So. 3d at 430 (quoting

Logan v. Logan, 730 So. 2d 1124, 1126 (Miss. 1998). The record shows that Connie took

Danielle into her home and provided parental supervision and support as though she were her

own child. See Farve v. Medders, 241 Miss. 75, 81-82, 128 So. 2d 877, 879-80 (1961).”

                                    CONCLUSION




Webster’s New Universal Unabridged Dictionary 1391 (2d ed. 1983).

                                             10
¶18.   Thus, we reverse the judgments of the Court of Appeals and the trial court, and we

remand the matter to the Chancery Court of Rankin County for proceedings consistent with

this opinion. Specifically, the court is to determine if Vaughn relinquished the natural-parent

presumption for reasons other than forfeiture by agreeing to a temporary custody order.

Three years have elapsed since the last hearing.         Thus, the chancellor should consider

Danielle’s circumstances at the time of the remand hearing, if he determines that desertion

has been proven. As always in custody matters, the best interests of the child should guide

the analysis as a polestar. As the chancellor’s judgments on joint legal custody, visitation,

et cetera, were not part of this appeal, the chancellor retains his discretion in crafting the best

arrangements, considering present circumstances.

¶19.   REVERSED AND REMANDED.

     WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR,
KITCHENS, AND CHANDLER, JJ., CONCUR.     PIERCE, J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J.,
AND CARLSON, P.J.

       PIERCE, JUSTICE, SPECIALLY CONCURRING:

¶20.   While I concur with the majority’s holding and analysis, I cannot join the majority

opinion where it adopts the analysis found in In re: Dissolution of Marriage of Leverock

and Hamby, 23 So. 3d 424 (Miss. 2009). Specifically, the majority discusses this Court’s

finding that the father in Leverock “deserted his son by ‘completely avoid[ing] both his

moral and legal duties and obligations as a father for more than two years.’” (Maj. Op. ¶ 14)

(quoting Leverock, 23 So. 3d at 431).




                                                11
¶21.   As I stated in Leverock, as an appellate court, this Court is responsible “to review the

decision of the chancellor, not to make an original determination.” Id. at 434-435 (Pierce,

J., concurring in part and dissenting in part). The chancellor in Leverock did not make

adequate findings on the record to support this Court’s sua sponte determination that the

father had deserted his child. Because I am of the opinion Leverock was wrongly decided,

I cannot join the majority opinion in which it adopts this Court’s analysis in that case.

Otherwise, I fully concur.

       WALLER, C.J., AND CARLSON, P.J., JOIN THIS OPINION.




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