                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2015-CA-00217-SCT

FRANK HARTLEY, JR.

v.

JOHN D. WATTS AND LENITA S. WATTS


DATE OF JUDGMENT:                             12/23/2014
TRIAL JUDGE:                                  HON. EDWARD E. PATTEN, JR.
TRIAL COURT ATTORNEYS:                        W. BRADY KELLEMS
                                              JOSEPH PRESTON DURR
                                              CHELI KELLEMS DURR
                                              DOUGLAS LAMONT TYNES, JR.
                                              DURWOOD J. BREELAND
COURT FROM WHICH APPEALED:                    LINCOLN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                       DOUGLAS LAMONT TYNES, JR.
ATTORNEYS FOR APPELLEES:                      W. BRADY KELLEMS
                                              JOSEPH PRESTON DURR
                                              CHELI KELLEMS DURR
NATURE OF THE CASE:                           CIVIL - ADOPTION
DISPOSITION:                                  AFFIRMED - 03/02/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE WALLER, C.J., COLEMAN AND CHAMBERLIN, JJ.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    Frank Hartley Jr. appeals the final judgment of the Chancery Court of Lincoln County

terminating his parental rights to his two biological children, A.B. and B.H.1 and granting an




       1
           Because this case is confidential, the children will be referred to by their initials.
adoption to John D. and Lenita S. Watts. Finding that the judgment is supported by clear and

convincing evidence, we affirm.


                       FACTS AND PROCEDURAL HISTORY

¶2.    Frank Hartley Jr. enlisted in the United States Air Force directly after graduating high

school in 2003. In early 2004, after completing his training, he was stationed at Eglin Air

Force Base located between Pensacola and Panama City, Florida. On August 21, 2004 he

married Amanda Fullmer.

¶3.    During late 2005, Hartley and Remy Bartenbach met and had an affair resulting in

Bartenbach’s pregnancy. Hartley and Bartenbach did not speak during much of the

pregnancy. In February 2006, Hartley and Fullmer divorced as a result of Hartley’s affair

with Bartenbach. Bartenbach gave birth to A.B. on August 14, 2006. Bartenbach contacted

Hartley shortly after the birth and asked him to come and meet his child. Hartley began

visiting regularly Bartenbach at her home in Destin, Florida, following the birth. Beginning

in January 2007, Hartley and Bartenbach moved in together, and he provided support for her

and the young child. Also during this time, Bartenbach became pregnant with a second child

by Hartley.

¶4.    Earlier in 2006, Hartley had had a sexual encounter with a fourteen-year-old girl

whom he met online and invited to his house. After the girl reported the incident to her

parents, an investigation began that lasted until August 16, 2006, when Hartley was arrested.

In January 2007, the State of Florida offered a plea deal in which Hartley would plead nolo

contendere to a charge of lewd and lascivious battery with a person over twelve but under


                                              2
sixteen years of age and serve only two years in prison with four years’ probation. Hartley

accepted the deal and in April 2007, Hartley pleaded no contest and received a two-year

prison sentence.

¶5.    While he was incarcerated, Hartley was discharged from the Air Force under less than

honorable circumstances. During this time, Bartenbach took A.B. to visit Hartley in prison

a couple of times. Hartley claims that, before he was incarcerated, he left Bartenbach money

in a checking account as support but could not recall the exact amount. Hartley also testified

that Bartenbach and A.B. stayed in the apartment they had lived in together for about two

months before he was incarcerated. On November 26, 2007, B.H. was born out of wedlock

to Bartenbach. Following this event, visits to the prison were no longer feasible. In February

2008, Bartenbach and the two children moved to Ocean Springs, Mississippi.

¶6.    Prior to being released from prison, Hartley was required to provide Florida probation

authorities with proof of residence and employment and register as a sex-offender. Since

Bartenbach had moved to Mississippi and had begun to sever ties to Hartley and his family,

Hartley decided he would return to Pennsylvania, where he had family ties. On January 2,

2009, Hartley was released from prison and moved in with his grandfather in Pennsylvania.

Hartley testified that he worked as an electrician with his uncle as soon as he arrived in

Pennsylvania and eventually found full-time employment with Timberline Packaging around

February 2009.

¶7.    Following his release, Hartley maintained phone contact with his children as much as

he could, given Bartenbach’s animosity toward him. In August 2009, the minor children



                                              3
were taken into custody by Jackson County Department of Human Services. Hartley sought

custody of his children but could not attend court in Jackson County as a result of his

probation. In addition to hiring counsel to represent him in the youth court, he paid for a

DNA test to prove paternity. Hartley also invoked the Interstate Compact on the Placement

of Children (ICPC) which would allow his children to be placed with him out of the State of

Mississippi. He also sought visitation rights. However, he was denied both. Bartenbach never

sought custody of her children after they were removed and eventually signed a Surrender

of Parental Rights form on January 17, 2013, and termination of her parental rights was

ordered on June 2, 2014.

¶8.    In December of 2009, A.B. and B.H. were placed with foster parents, Lenita and John

Watts, in Lincoln County, Mississippi. The Wattses provided care for the children for twenty-

two months from approximately December 2009 to October 2011. The Wattses received no

support from Hartley or Bartenbach during this period and decided within the first six months

of the placement that they would pursue adoption. Following their unexpected and

unexplained removal from the Wattses’ home, the children were placed in at least four other

foster homes and, in at least one of these, allegations of sexual abuse were raised.

¶9.    In January of 2010, Hartley was incarcerated for violating his probation on two

counts, (1) curfew violation and (2) unsupervised contact with minors. Following his arrest,

he was extradited to Florida, where he pleaded guilty. In September that same year, he was

released from prison and returned to Pennsylvania. Shortly thereafter, on September 13,

2010, the Jackson County Youth Court ordered the Department of Human Services to stop



                                             4
working with the parents and to proceed with the termination of parental rights. At this

hearing, Hartley again asked for visitation, custody, or ICPC rights, but all requests were

denied.

¶10.   The Department of Human Services filed a petition to terminate the parental rights of

both Hartley and Bartenbach in May 2011. Despite the testimony of three social workers, the

guardian ad litem, and Dr. Donald G. Hoppe, all recommending termination of parental

rights, on June 20, 2011, the Jackson County Youth Court changed positions and ordered

reunification efforts with Hartley.

¶11.      In October 2011, the Jackson County Youth Court granted Hartley full custody of the

children. However, the Lincoln County Chancery Court granted the Wattses’ Temporary

Injunctive Relief, staying any change in custody. Miss. Dep’t of Human Servs. v. Watts, 116

So. 3d 1056, 1057 (Miss. 2012).That same month, the Wattses filed their petition for

termination of parental rights, adoption, or in the alternative custody, and for other relief in

Lincoln County Chancery Court. Following the Mississippi Supreme Court’s ruling on an

interlocutory appeal, to determine whether the Lincoln County Chancery Court had

jurisdiction, the case was remanded to the Lincoln County Chancery Court for a trial on the

merits. Id.

¶12.   Between 2011 and 2014, Hartley had intermittent contact with his children through

phone calls and Skype. Hartley also spent a total of twenty-seven days and nine hours with

his children through visits spanning from June 21, 2011, through March 15, 2014.




                                               5
¶13.   Trial began on April 29, 2014, and lasted four days. At trial, the Wattses called the

following witnesses: Mark Holmes (Guardian Ad Litem), Hartley (Respondent), Lena Parker

(DHS Supervisor), Lasonga Fields (DHS Resource Specialist), and Lenita Watts (Petitioner).

Hartley called the following witnesses: Ellen Moore (therapist at Family Focus PLLC),

Lakeshia Kinnard-Ellis (DHS Family Protection Specialist), Stephanie Stanton (DHS

Adoption Specialist), Lindsay Teague (DHS Social Worker), Martha Hartley (Respondent’s

Mother), and Hartley (Respondent). Following the testimony of the other witnesses, the

guardian ad litem, Mark Holmes, testified regarding his final report and recommendation that

parental rights be terminated for both Hartley and Bartenbach. The Interlocutory Decree was

entered on June 19, 2014, in favor of the Wattses’ position, terminating Hartley’s parental

rights and allowing A.B. and B.H. to be adopted over the objection of a nonconsenting

parent. Following a six-month interlocutory period, the adoption became final on December

23, 2014.

¶14.   After the denial of his request for reconsideration, Hartley timely filed this appeal on

January 23, 2015, raising the following issues: first, whether the Chancery Court of Lincoln

County erred in terminating the parental rights of Frank Hartley Jr.; and second, whether the

Chancery Court of Lincoln County erred in failing to address the three prerequisites for

termination of parental rights that must be met under Subsection (1) of Mississippi Code

Section 93-15-103.

                               STANDARD OF REVIEW




                                              6
¶15.   In termination-of-parental-rights cases, the Mississippi Supreme Court examines

“whether 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) (citing K.D.F. &

J.C.F. v. J.L.H., 933 So. 2d 971, 975 (Miss. 2006)). Further, the chancellor’s findings of fact

“are viewed under manifest error/substantial credible evidence standard of review.” Id.

However, the Court will not substitute its judgment for the chancellor’s. Id.


                                       DISCUSSION

       I.     Whether the Lincoln County Chancery Court erred in terminating
              the parental rights of Frank Hartley Jr.

¶16.   The Wattes sought termination of parental rights pursuant to Mississippi Code Section

93-17-7 (Rev. 2013), which allows the adoption of a child over the objection of a

nonconsenting parent upon a finding by the chancellor of certain enumerated factors. The

chancellor’s decision to terminate parental rights was based on four findings: A. Moral

unfitness; B. Failure to provide support; C. Past and present conduct; and D. Acts and

omissions under Section 93-15-103.

       A.     Whether the chancery court erred in determining that the moral
              unfitness standard had been met by clear and convincing evidence.

¶17.   Hartley argues that the Wattses failed to overcome the strong presumption in favor of

a natural parent retaining parental rights. In Re Adoption of H.H.O.W., 109 So. 3d 1102

(Miss. Ct. App. 2013). The party seeking the adoption and termination of parental rights must

prove by clear and convincing evidence that the objecting party is “mentally, or morally, or

otherwise unfit to rear and train [his child].” Miss. Code Ann. § 93-17-7(1) (Rev. 2013); see


                                              7
also In Re Adoption of H.H.O.W., 109 So. 3d 1102 (Miss. Ct. App. 2013). Hartley disputes

each of the factors on which the chancery court relied to support the termination of parental

rights. The chancellor cited each of the following findings in determining that Hartley was

morally unfit.

                 i.   Sex-Offender Status

¶18.   Hartley is a convicted sex-offender who is required to register for life. He was

convicted under Florida law for lewd and lascivious battery against a fourteen-year-old girl.2

The chancellor found that this fact would affect adversely the children’s social and

extracurricular engagements. Hartley argues on appeal that his criminal conviction is

inadequate alone to support the termination, citing In Interest of J.D.: “commission of a

crime is, alone, insufficient to find him morally unfit to rear and train his child, especially

where rehabilitation is evident.” In Interest of J.D., 512 So. 2d 684, 686 (Miss. 1987)

(affirming the trial court’s finding that the parent was fit). In the present case, the chancellor

found that the criminal conviction, along with other factors delineated below, did render

Hartley unfit and, absent manifest error, we will not disturb that determination.3

¶19.   Hartley also states that the chancellor incorrectly relied on a criminal conviction that

happened in the past. However, the version of Mississippi Code Section 93-17-7(2)(d) that

was in effect at the time the Wattses’ petition was filed permitted the chancellor to consider


       2
       Fla. Stat. Ann. § 800.04(4) (2014). See also State of Florida v. Frank A. Hartley,
Case # 06-CF-2161 (Okaloosa County Circuit Court).
       3
        The chancellor also noted that when Hartley was released from prison on January
2, 2009, he stated that he was required to register his sex-offender status in Pennsylvania
within forty-eight hours. The record indicates that he did not do this until January 20, 2009.

                                                8
“(d) viewed in its entirety, the parent’s past or present conduct, including his criminal

convictions,” when granting an adoption over a parent’s objection.4

      4
       Mississippi Code Section 93-17-7 was amended in 2016. Because the proceedings
occurred in 2014, this Court will view the version of the statute as it existed in 2014.
Mississippi Code Section 93-17-7 (Re. 2013) states:

      (1) No infant shall be adopted to any person if either parent, after having been
      summoned, shall appear and object thereto before the making of a decree for
      adoption, unless it shall be made to appear to the court from evidence
      touching such matters that the parent so objecting had abandoned or deserted
      such infant or is mentally, or morally, or otherwise unfit to rear and train it,
      including, but not limited to, those matters set out in subsection (2) of this
      section, in either of which cases the adoption may be decreed notwithstanding
      the objection of such parent, first considering the welfare of the child, or
      children sought to be adopted. Provided, however, the parents shall not be
      summoned in the adoption proceedings nor have the right to object thereto if
      the parental rights of the parent or parents have been terminated by the
      procedure set forth in Sections 93-15-101 through 93-15-111, and such
      termination shall be res judicata on the question of parental abandonment or
      unfitness in the adoption proceedings.

      (2) An adoption may be allowed over the objection of a parent where:
            (a) The parent has abused the child. For purposes of this
            paragraph, abuse means the infliction of physical or mental
            injury which causes deterioration to the child, sexual abuse,
            exploitation or overworking of a child to such an extent that his
            health or moral or emotional well-being is endangered.
            (b) The parent has not consistently offered to provide
            reasonably necessary food, clothing, appropriate shelter and
            treatment for the child. For purposes of this paragraph,
            treatment means medical care or other health services provided
            in accordance with the tenets of a well- recognized religious
            method of healing with a reasonable, proven record of success.
            (c) The parent suffers from a medical or emotional illness,
            mental deficiency, behavior or conduct disorder, severe physical
            disability, substance abuse or chemical dependency which
            makes him unable or unwilling to provide an adequate
            permanent home for the child at the present time or in the
            reasonably near future based upon expert opinion or based upon
            an established pattern of behavior.

                                             9
              ii.    Adulterous Relationships and Fathering Children Out-of-
                     Wedlock

¶20.   It is undisputed that Hartley engaged in adulterous relationships with at least two

different women and fathered both A.B. and B.H. out of wedlock. The first relationship with

Bartenbach ended his own first marriage. The second adulterous relationship, with Kathryn

Kistler, ended her marriage. Hartley argues on appeal that his adulterous relationships alone

do not support the termination. Hartley cites Petit v. Holifield, where this Court found “the

fact that a custodial parent has cohabitated with a person who later became that parent’s

spouse [is] insufficient to constitute a material change in circumstances requiring a change

in custody.” Petit v. Holifield, 443 So. 2d 874, 878 (Miss. 1984). The Court then stated that

this is true also in adoption cases. Id. The Court continued, “[t]he mere fact that a natural

parent has had a prior adulterous relationship is insufficient to warrant a finding that the

parent is unfit under our statutes whereby his parental rights may be severed.” Id.

¶21.   In this case, Hartley began his relationship with Bartenbach before he was divorced

from his first wife. He also began his relationship with Kistler, his current wife, while she


              (d) Viewed in its entirety, the parent’s past or present conduct,
              including his criminal convictions, would pose a risk of
              substantial harm to the physical, mental or emotional health of
              the child.
              (e) The parent has engaged in acts or omissions permitting
              termination of parental rights under Section 93-15-103.
              (f) The enumeration of conduct or omissions in this subsection
              (2) in no way limits the court’s power to such enumerated
              conduct or omissions in determining a parent’s abandonment or
              desertion of the child or unfitness under subsection (1) of this
              section. (Emphasis added.)

                                             10
was still married, ending that marriage. These events, together with the sexual battery,

support the chancellor’s decision.

              iii.   Candor Before the Courts

                     a. Youth Court

¶22.   The chancellor found that Hartley had little regard for the truth when testifying before

the Jackson County Youth Court, where it is alleged that he misrepresented the facts of the

sexual battery of the fourteen-year-old. Hartley argues that he never misrepresented those

facts to the youth court. However, Lenita Watts testified that Hartley, while under oath,

testified to the Jackson County Youth Court that he had met the fourteen-year-old at a bar

and that she had a fake ID and that it was the bouncer’s fault for letting her in. Stephanie

Stanton, an adoption specialist with DHS, testified that she also remembered Hartley making

a similar explanation, but she did not remember him passing blame to the bouncer.

¶23.   The record supports the chancellor’s finding that Hartley misrepresented the facts of

his sexual-battery conviction before the youth court.5

                     b. Chancery Court

¶24.   The chancellor found that Hartley had made misrepresentations to the chancery court

regarding when he began cohabitating with his current wife. Hartley does not take issue with



       5
         Hartley also complains of what he refers to as other falsehoods, allegedly
disseminated through DHS, such as he was convicted of child pornography. Lena Parker,
a supervisor with Department of Human Services (DHS), testified that DHS likely was
responsible for the dissemination of the falsehoods rather than Hartley. The record shows
that this was introduced through a social worker’s aid to one of the other social workers who
counseled the children. The chancellor did not rely on these other alleged falsehoods in his
decision.

                                             11
that but says that the activity did not affect his children, since they were not present. He also

argues that cohabitation is relevant only where it adversely affects the children. Glissen v.

Glissen, 910 So. 2d 603, 611-12 (Miss. Ct. App. 2005); see also Cheek v. Ricker, 431 So.

2d 1139, 1144 (Miss. 1983). The record supports the chancellor’s finding of lack of honesty

and candor by Hartley before the chancery court.6

              iv.     Probation Violation

¶25.   The chancellor found that violating probation was evidence of his moral unfitness.

Hartley claims he was innocent of violating his probation, yet he pleaded guilty and was

incarcerated. Hartley also argues that the chancellor should not apply Mississippi Code

Section 93-17-7 to the fact that he pleaded guilty to his probation violation. However, the

statute gives the chancellor broad discretion in subsection (f) to determine what conduct may

be considered for a finding of unfitness.7

              v.      Current Wife’s Loss of Custody




       6
        The chancellor also found the following regarding Hartley’s testimony:

       Hartley represented to this court that the children were most distressed when
       he obtained them in October 2011, while the social worker testified they were
       happy. This Court chooses to find the social worker more credible. There are
       other incidents in this record that call Hartley’s credibility in issue and when
       taken in view of the totality of circumstances cause this Court to find that the
       moral unfitness standard has been met. This is by clear and convincing
       evidence.
       7
        Mississippi Code Statute 93-17-7(2)(f) states, “The enumeration of conduct or
omissions in this subsection (2) in no way limits the court’s power to such enumerated
conduct or omissions in determining a parent’s abandonment or desertion of the child or
unfitness under subsection (1) of this section.”

                                               12
¶26.   The chancellor found that Hartley had maintained a relationship with a married

woman, Kathryn Kistler, and caused her to lose custody of her children due in part to his

status as a sex-offender. He also found that the Pennsylvania court forbade any contact

between Hartley and Kistler’s children. Hartley presents a similar argument here as before

and suggests that since A.B. and B.H. were not involved, they were not harmed. However,

there is a distinction that should be noted. The relationship with the married woman in

Pennsylvania resulted in Hartley’s violation of probation and her losing custody of her three

children. The chancellor cited this factor to demonstrate Hartley’s moral unfitness, as the

relationship had consequences that went beyond the promiscuity. Hartley contends that the

relationship resulted in marriage and was out of the presence of his children and therefore

was not adverse to them. However, the extramarital affair, resultant probation violation, and

subsequent incarceration demonstrate moral unfitness and support the chancellor’s finding.

              vi.     Choice to Remain in Pennsylvania

¶27.   Hartley chose to remain in Pennsylvania rather than move to Mississippi where his

children were located, shirking all responsibility for their support. Hartley contends that

staying in Pennsylvania was the best decision for him and his children. In addition to having

family support there, he also had stable living conditions and employment. Hartley contends

that nothing in the statutes or caselaw supports finding a parent unfit for living in a different

state. This Court has stated that “a custodial parent may wish to take his or her child out of

the state [and doing so] is [an] insufficient reason to deprive the parent of custody . . . .”

White v. Thompson, 569 So. 2d 1181, 1184 (Miss. 1990). Hartley is not the custodial parent



                                               13
in this case, but the caselaw supports his contention that nothing would preclude him from

moving his children to Pennsylvania if he had custody and had no restrictions from the court

that granted custody.

¶28.   The chancellor correctly notes that Hartley’s choice to move away from the children

without seeking custody was adverse to the best interests of the children and constituted

evidence against the father.8 Further, Department of Human Services recommended that

Hartley move closer to facilitate reunification efforts.

       B.     Whether the chancery court erred in determining that Hartley
              failed to provide support by clear and convincing evidence.

¶29.   The failure to provide support is another basis for termination under Mississippi Code

Section 93-17-7. An adoption over the parent’s objection may be ordered where “the parent

has not consistently offered to provide reasonably necessary food, clothing, appropriate

shelter and treatment for the child.” Miss. Code Ann. § 93-17-7(2)(b) (Rev. 2013). The

chancellor noted that the Department of Human Services never asked Hartley to contribute

to the support of his children.

¶30.   Hartley contends that his persistent requests for custody throughout this whole process

support his willingness to provide for his children. He also points out that, prior to his

incarceration and for a short time after, he provided all the necessary support for A.B. and

that he did not abandon his children. The chancellor found, and the record supports, that




       8
       The guardian ad litem stated that the youth court had authority to place the children
with Hartley had he moved to Mississippi.

                                             14
Hartley consistently shirked any responsibility for providing support and never offered to

provide support to his children.9

       C.      Whether the chancery court erred in determining by clear and
               convincing evidence that Hartley’s past and present conduct is
               grounds for terminating parental rights.

¶31.   Hartley argues that the chancellor erred in finding that Mississippi Code Section 93-

17-7 allows it to consider past conduct. However, the applicable version of the statute allows

for such an analysis and states: “An adoption may be allowed over the objection of a parent

where . . . [v]iewed in its entirety, the parent’s past or present conduct, including his criminal

convictions, would pose a risk of substantial harm to the physical, mental or emotional health

of the child.” Miss. Code Ann. § 93-17-7(2)(d) (Rev. 2013) (emphasis added). Many of the

factors set out in subsection A detail Hartley’s conduct.

¶32.   Hartley argues that the chancellor’s assessment of his conduct gives no credit to the

fact that he has been fighting for custody of his children for almost six years. He also

contends that he has, through phone calls, Skype, and visits, developed relationships with

A.B. and B.H. following the youth court’s order of reunification efforts in 2011.10 While this

is not relevant in determining the adverse effect Hartley’s past and present conduct might

have on the children, he seems to be arguing that his behavior has improved.




       9
       The chancellor focused on the language of the statute which requires “offer[s] to
provide,” not actual providing.
       10
        The youth court ordered monitored telephonic visitation, including the use of Skype,
beginning in June 2011. Lenita Watts testified that she complied with the court’s order but
Hartley would occasionally miss these visits.

                                               15
¶33.   The chancellor found that the children were adversely affected and were deprived of

their biological father as a result of Hartley’s conduct. Additionally, the record supports the

chancellor’s finding that, as a result of his conduct, Hartley had little contact with his

children from 2007 to 2011. The chancellor also found that it is unlikely that a handful of

visits since 2011 could have created a father-child relationship after such a long absence. The

chancellor also found that Hartley’s past and present conduct would pose a risk of substantial

harm to the physical, mental, and emotional health of the children. The chancellor considered

the effect of Hartley’s status as a sex-offender. He found that the social, extracurricular, and

other activities of the children will be impaired by Hartley’s status as a registered sex-

offender and found that this was clear and convincing evidence of risk of substantial harm

to the children.

       D.     Whether the chancery court erred in determining that Hartley’s
              acts or omissions allowed termination of parental rights under
              Section 93-15-103.

¶34.   Mississippi Code Section 93-17-7 permits the chancellor to base his decisions on acts

or omissions under the termination-of-parental-rights statute, Mississippi Code Section 93-

15-103 (Rev. 2013).11 Subsection (3)(f) of Section 93-15-103 provides for terminating

parental rights where there is sustained separation and lack of communication that

undermines the relationship between the parent and child, stating:

       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

       11
        A 2016 amendment of Section 93-15-103 removed the bulk of that section to
Section 93-15-121.

                                              16
       serious neglect, abuse, prolonged and unreasonable absence, unreasonable
       failure to visit or communicate, or prolonged imprisonment.

Miss. Code Ann. § 93-15-103(3)(f) (Rev. 2013) (emphasis added). The Court has noted that

“[a] finding of substantial erosion of the parent/child relationship necessarily involves a

consideration of the relationship as it existed when the termination proceedings were

initiated.” G.Q.A. v. Harrison County Dep’t of Human Res., 771 So. 2d 331, 338 (Miss.

2000). The chancellor noted that no relationship existed at the beginning of the proceedings

in 2011 and that it had not been eroded through any animosity between parent and children.

¶35.   This Court also has held that a “substantial erosion could be prove[n] by showing a

prolonged absence and lack of communication between the parent and child.”Id. The statute,

referenced above, states as much: “[B]y the parent’s serious neglect, abuse, prolonged and

unreasonable absence, unreasonable failure to visit or communicate, or prolonged

imprisonment.” Miss. Code Ann. § 93-15-103(3)(f). The chancellor found the following facts

were clear and convincing evidence of an erosion of the relationship: Hartley’s (1) failure to

send any monetary support, (2) failure to take steps to notify authorities of suspected neglect

of his children by Bartenbach, (3) failure to seek an adjudication of paternity and the rights

and obligations associated with that determination, (4) failure to establish contact with the

children during the time he was first released from prison, specifically from January 2, 2009,

through January 27, 2010, (5) multiple incarcerations, (6) deliberate choices to locate a great

distance from the children during the period of his probation, and (7) that at the time the

petition was filed, the children simply did not know who he was.




                                              17
¶36.   The chancellor stated further, “[i]t is virtually incomprehensible to believe a father-

child relationship, after the extended absence since [A.B.] was an infant and complete

absence in the case of [B.H.], could be re-established with twenty-seven days and [nine]

hours of physical contact coupled with Skype and phone contact.”12

¶37.   Hartley argues that he was not allowed to communicate with his children until June

20, 2011. But after he was allowed to communicate, he did so consistently. He argues that

where a parent has made efforts to maintain a relationship, termination of parental rights is

error. De La Oliva v. Lowndes County Dep’t of Pub. Welfare, 423 So. 2d 1328, 1331-32

(Miss. 1982). He also cites this case to also show that error exists where DHS fails to work

with the parents and a third party intervenes. Id. Hartley claims that the record clearly

supports the notion that the Wattses interfered in his attempts to gain custody of his children.

However, the record shows that, because the youth court had not ordered reunification efforts

with Hartley, DHS had refused to work with him. Nothing suggests that the Wattses caused

the problems. And after the youth court ordered reunification efforts with Hartley in 2011,

DHS began working with him.

¶38.   Another subsection of Mississippi Code Section 93-15-103(3)(g) allows for

termination of parental rights where the parent has violated certain statutes. That subsection

provides the following ground, justifying termination of parental rights:




       12
        The chancellor is referring to the period of time following Hartley’s incarceration
in 2007 to 2011 when the children either were with their mother, Bartenbach, or in foster
care and did not see their father. Hartley testified that he did make regular phone calls to his
children after getting out of prison and during the reunification efforts beginning in 2011.

                                              18
       When a parent has been convicted of any of the following offenses against any
       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) . . . .

Miss. Code Ann. § 93-15-103(3)(g) (Rev. 2013). The chancellor readily acknowledged that

Hartley was not convicted of a violation of a Mississippi statute since the crime occurred in

Florida. However, Hartley’s Florida crime has the same elements as the Mississippi crimes

“touching a child” and “statutory rape.” Miss. Code Ann. §§ 97-5-23 (Supp. 2016) & 97-3-65

(Rev. 2014). The chancellor found that this factor was proved with clear and convincing

evidence.

¶39.   However, Hartley contends that, since the crime was committed in Florida, he is

exempt from that consequence. Hartley argues that if the Legislature had intended to allow

out-of-state convictions to apply, it should have made that clear in the statute. Hartley is

correct that the statute references violations of Mississippi statutes. See Miss. Code Ann. §

93-15-103(3)(g) (listing specific Mississippi Code sections rather than general crimes.)

However, the chancellor’s decision was made under Section 93-17-7, and Section 93-15-

103(3)(g) was invoked only as an additional factor under Section 93-17-7(e). That the Florida

criminal judgment would not support a termination under Mississippi Code Section 93-15-

103(3)(g) does not cause the ultimate holding to fail.

       II.    Whether the Lincoln County Chancery Court erred in failing to
              address the three prerequisites that must be met under Subsection
              (1) of Mississippi Code Section 93-15-103.




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¶40.   Hartley argues that the chancellor failed to consider all the prerequisites under

Mississippi Code Section 93-15-103(1) before terminating parental rights, as required by

Chism v. Bright,152 So. 3d 318 (Miss. 2014). Chism requires the trial court to address three

factors under Section 93-15-103(1), including: (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. Id. (citing In Re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 428

(Miss. 2009)).

¶41.   As to the first prong, it is undisputed that Hartley sought custody after the

reunification efforts were ordered by the court. Reunification efforts began with Hartley after

the children were in DHS’s custody for two years. Hartley contends that he made countless

efforts to get custody of his children. The Wattses respond that these prerequisites were not

ignored at trial and that when the children were taken into DHS’s custody, neither parent was

available, as Bartenbach was neglecting the children and Hartley was in prison. The record

supports their contention that Bartenbach was unavailable. However, the record shows that

Hartley was released from prison in January 2009, about eight months before the children

were taken into custody. The record supports his argument that he was not initially

considered as an option after the children were taken into DHS’s custody. The chancellor

conceded that abandonment was not proven by clear and convincing evidence.




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¶42.   Hartley next argues under prong two that other relatives were not considered. The

record also supports Hartley’s contention that, initially, DHS made very few efforts to place

the children with his family and that Hartley’s parents sought to have the children placed

with them. The Wattses responded that relative placement was not viable. Their argument

was based on the fact that Hartley’s mother did not take immediate action and asked for

visitation only five months after the children were taken into custody and requested custody

only after about a year.

¶43.   Finally, with respect to prong three, Hartley contended that termination of parental

rights should be the last resort. The Wattses argued that the chancellor found that adoption

was in the best interests’ of the children. They contend that this is supported by Guardian Ad

Litem Mark Holmes’s final recommendation. Indeed the chancellor found by clear and

convincing evidence that the adoption was in best interests of the children.

¶44.   Hartley’s argument ultimately fails because the chancellor’s termination was based

on Mississippi Code Section 93-17-7. This Court has held that the chancellor may also

consider factors from Section 93-15-103 in termination-of-parental-rights cases. Blakeney

v. McRee, 188 So. 3d 1154, 1163-64 (Miss. 2016). In Blakeney, this Court held that “[t]he

statutory grounds for termination of parental rights in suits brought under Section 93-15-103

also are incorporated by reference as circumstances the chancellor may consider in

determining whether to grant an adoption over the objection of a natural parent.” Id. at 1163.

This Court continued, “the chancellor is free to consider, but was not required to find, the

statutory grounds enumerated in Sections 93-17-7 and 93-15-103.” Id. at 1164. Since the

chancellor ruled under Mississippi Code Section 93-17-7 in terminating parental rights, the


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court was not required to consider all the prerequisites or factors under Section 93-15-103(1)

and used that section only as additional support of his final judgment.

                                     CONCLUSION

¶45.   After a thorough consideration of the record and the chancellor’s determination, we

affirm the Lincoln County Chancery Court’s judgment to terminate Frank A. Hartley Jr.’s

parental rights and grant the adoption by John D. and Lenita S. Watts of A.B. and B.H.

¶46.   AFFIRMED.

   DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN,
MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.




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