        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-00622-COA

IN THE INTEREST OF V.M.H., V.M.H., V.M.H.,
AND V.M.H.:

VONRIO HAWKINS                                                             APPELLANT

v.

THE YOUTH COURT OF DESOTO COUNTY,                                            APPELLEE
MISSISSIPPI

DATE OF JUDGMENT:                         03/29/2016
TRIAL JUDGE:                              HON. CELESTE EMBREY WILSON
COURT FROM WHICH APPEALED:                DESOTO COUNTY YOUTH COURT
ATTORNEYS FOR APPELLANT:                  JERRY WESLEY HISAW
                                          BENJAMIN DAVID MURPHY
ATTORNEY FOR APPELLEE:                    ELIZABETH PAIGE WILLIAMS
NATURE OF THE CASE:                       CIVIL - CUSTODY
TRIAL COURT DISPOSITION:                  PLACED CHILDREN IN THE CUSTODY OF
                                          THE MISSISSIPPI DEPARTMENT OF
                                          HUMAN SERVICES
DISPOSITION:                              AFFIRMED: 07/18/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

       FAIR, J., FOR THE COURT:

¶1.    Vonrio Hawkins appeals a decision of the DeSoto County Youth Court adjudicating

his four children abused and placing them in the custody of the Mississippi Department of

Human Services. Hawkins contends that, because the DeSoto County Chancery Court had

previously entered an order granting him custody of the children, the chancery court had

exclusive continuing jurisdiction over custody of the children. Hawkins also argues that the
youth court lacked substantial evidence to find that the children were abused rather than

simply disciplined. We find no merit to either contention and affirm.

                                       DISCUSSION

       1.     Jurisdiction

¶2.    Hawkins’s challenge to the youth court’s jurisdiction is made for the first time on

appeal, though the chancery court order giving him custody does appear in the record. It

notes that the mother of Hawkins’s four children had three other children and did not have

the means to support such a large family; she had surrendered Hawkins’s children to him

voluntarily. The chancery court order granted Hawkins custody of the children and provided

for visitation by the mother. It was filed in June 2012. The youth court proceedings

stemmed from a complaint that the children had reported abuse to their mother during

visitation in December 2015. At the time of the hearing, the children were nine, eleven,

twelve, and fourteen.

¶3.    Hawkins contends that the youth court judgment is void because that court lacked

jurisdiction over the subject matter – the custody of the children – and that this issue may be

raised for the first time on appeal. See M.R.C.P. 12(h)(3).

¶4.    We agree that Hawkins is contesting subject matter jurisdiction and that the issue can

be raised for the first time on appeal, but we find it to be without merit. The boundary

between the jurisdiction of chancery courts and youth courts under our law has been

somewhat unclear at times, and indeed may still be under certain circumstances; but for the


                                              2
specific facts of this case, we see no difficulty finding jurisdiction in the youth court.

Mississippi Code Annotated section 43-21-151(1)(c) (Rev. 2015) provides in relevant part:

       The youth court shall have exclusive original jurisdiction in all proceedings
       concerning . . . an abused child . . . except in the following circumstances:

       ....

       When a charge of abuse of a child first arises in the course of a custody action
       between the parents of the child already pending in the chancery court and no
       notice of such abuse was provided prior to such chancery proceedings, the
       chancery court may proceed with the investigation, hearing and determination
       of such abuse charge as a part of its hearing and determination of the custody
       issue as between the parents, notwithstanding the other provisions of the Youth
       Court Law.

Setting aside the question of whether the abuse allegations here arose “in the course of a

custody action between parents of the child already pending in chancery court,” the statute

provides that the chancery court may proceed on abuse allegations. Thus, under the statutory

scheme the chancery court’s jurisdiction over that category of abuse claims arising after its

assumption of jurisdiction over custody is not exclusive, but is conditioned on the chancery

court’s election to assume jurisdiction – and that did not occur here.

¶5.    Hawkins responds by citing the repeated pronouncement by our courts that a chancery

court, after deciding custody, has continuing and exclusive jurisdiction over custody. See,

e.g., Ladner v. Ladner, 206 So. 2d 620, 624-25 (Miss. 1968) (abrogated in part). While this

is certainly true when the issue is a simple modification of the original court’s custody

decree, or a similar issue between the same parties, the continuing jurisdiction has not been

held to be exclusive when it comes to related but distinct actions such as habeas corpus and

                                              3
abuse allegations in the youth court. See Wade v. Lee, 471 So. 2d 1213, 1215-17 (Miss.

1985) (county court had jurisdiction to enter temporary habeas corpus orders even between

the same parties to the original custody decree); In re D.L.D., 606 So. 2d 1125, 1127-30

(Miss. 1992) (youth court had jurisdiction over custody of child based on finding of abuse,

even after the chancery court entered a temporary custody order).

¶6.    The current subsection 43-21-151(1)(c) was adopted after In re D.L.D. and has been

noted to have been a response to that decision by the Legislature. See In re D.K.L., 652 So.

2d 184, 189-90 (Miss. 1995). But, as we said, the statute allows the chancery court the

option of resolving the abuse allegations under certain circumstances. This reading of the

statute was confirmed in the more recent case of McDonald v. McDonald, 39 So. 3d 868,

886-87 (¶¶61-62) (Miss. 2010), where the supreme court explained that both the chancery

court and the youth court had jurisdiction over abuse allegations that arose after an

adjudication of custody in chancery court. There, the chancery court actually exercised its

option to assume jurisdiction and adjudicated the abuse allegations, and that decision was

affirmed. Id. But, in the instant case, the chancery court never asserted jurisdiction, and it

was the youth court that adjudicated the abuse allegations. It had jurisdiction to do so from

the statute. See id.

¶7.    We conclude that the youth court’s judgment is not void for want of jurisdiction.

This issue is without merit.

       2.     Sufficiency of the Evidence


                                              4
¶8.    Hawkins’s remaining issue – though not exactly styled this way – is essentially a

challenge to the sufficiency of the evidence supporting the youth court’s determination that

his four children were abused.

¶9.    In relevant part, the statute defines an abused child as one “whose parent . . . has

caused or allowed to be caused, upon the child, . . . emotional abuse, mental injury,

nonaccidental physical injury or other maltreatment.” Miss. Code Ann. § 43-21-105(m)

(Supp. 2016). But “physical discipline, including spanking, performed on a child by a

parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this

section.” Id. Mississippi Code Annotated section 43-21-561(3) (Supp. 2016) requires proof

of abuse only by a preponderance of the evidence.

¶10.   The youth court judge is the finder of fact and the judge of the credibility of the

witnesses. See In re D.O., 798 So. 2d 417, 421 (¶13) (Miss. 2001). Our review of the youth

court’s decision is limited to the familiar substantial evidence / manifest error standard. Id.

On appeal, this Court must consider all of the evidence in the light most favorable to the

State. Id.

¶11.   Three of the four children testified at the hearing, and each described similar actions

by Hawkins toward them or their siblings: they were slapped in the head with an open hand,

punched in the head, face, or chest with a closed fist, choked, struck with a broom, “body

slammed” onto a concrete floor, and kicked in the chest or stomach. Hawkins contends that

the testimony of the children was not credible; that it was contradicted by his witnesses, who


                                              5
were in a position to have seen some of the abuse alleged by the children but testified that

they did not; that the children’s claims were uncorroborated by solid proof of injuries; and

that the evidence showed only that he used corporal punishment. These arguments are, for

the most part, just an attempt to relitigate factual disputes resolved by the youth court. This

court is not in a position to reevaluate the credibility of witnesses; we can only decide

whether any reasonable trier of fact could have found them credible – and we must answer

that question in the affirmative. The children were generally consistent in their testimony,

and their account was not improbable on its face or contradicted by overwhelming evidence.

¶12.   Likewise, while we agree with Hawkins that corporal punishment does not constitute

abuse under Mississippi law, the statute requires that physical discipline be performed in a

reasonable manner. See § 43-21-105(m). The Mississippi Supreme Court has elaborated:

       The Mississippi Youth Court Act was not intended to and does not prohibit the
       use of corporal punishment in disciplining a child. Injury is labeled abusive
       only when it constitutes maltreatment.

              A parent, being charged with the training and education of his
              child, has a right to adopt such disciplinary measures for the
              child as will enable him to discharge his parental duty.
              Accordingly, he has a right to correct the child by reasonable
              and timely punishment, including corporal punishment. A
              parent has a wide discretion in the performance of such
              functions. The control and proper discipline of a child by the
              parent may justify acts which would otherwise constitute assault
              and battery, but the right of parental discipline clearly has its
              limits. . . . The rule recognized by a majority of the courts is that
              a parent may, without criminal liability, inflict such punishment
              as is reasonable under the facts and the circumstances.

       59 Am. Jur. 2d Parent and Child § 22, 152-53 (1987).                 “The test of

                                               6
       unreasonableness is met at that point where the parent ceases to act in good
       faith and with parental affection, and acts immoderately, cruelly or mercilessly,
       with a malicious desire to inflict pain rather than a genuine effort to correct the
       child by proper means.” State v. Hunt, 406 P.2d 208, 222 (Ariz. Ct. App.
       1965).

In re A.R., 579 So. 2d 1269, 1270-71 (Miss. 1991) (footnote omitted).

¶13.   The youth court judge directly addressed the reasonableness of Hawkins’s alleged

discipline methods, and it held that they were unreasonable. In response, Hawkins cites

Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1984), for the proposition that, by itself, a

single unwarranted striking of a child would not amount to a material change of

circumstances. But the language he cites is dicta, and it was directed toward a different issue

– the requirement of a material change in circumstances to support a custody modification

in chancery court. Moreover, Hawkins’s striking of the children was alleged to be frequent

and persistent over a long period of time, not an isolated incident as contemplated in Tucker.

Hawkins also cites In re A.R. for the proposition that bruising is insufficient injury to sustain

a finding of abuse. But that case involved bruising of the buttocks from spanking – a far cry

from the outrageous conduct found to have occurred here, which included punching, “body

slamming,” and kicking. Furthermore, Hawkins’s emphasis on injury is misplaced. The

statute, section 43-21-105(m), provides that both nonaccidental physical injury and “other

maltreatment” may constitute abuse. Physical discipline is excepted from the definition of

abuse only when it is performed in a reasonable manner. See id. “Discipline” of the sort at

issue here presents an unreasonable danger to the child and constitutes maltreatment whether


                                               7
or not it results in injury more severe than bruising.

¶14.     Finally, the youth court also adjudicated the children to be neglected as well as

abused. Hawkins contends that this was error, but he has not provided any additional

argument or authority. Thus, no error has been shown, and we affirm the youth court on that

point.

¶15.     AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.




                                              8
