July 06, 2018

Mississippi

ABUSE

AGE OF VICTIM

Carter v. State, 2016 WL 6963165 (Miss. Ct. App.). On motion for post-conviction relief in sexual battery of child under age 14 case, defendant argued prosecution failed to prove victim’s age beyond reasonable doubt. Prosecution provided adequate factual basis to establish child victim was under age 14 at time of offense, thus defendant’s guilty plea operated to waive his claim.

HEARSAY

Carpenter v. State, 132 So.3d 1053 (Miss. Ct. App. 2013). Child’s statements about sexual abuse by mother’s boyfriend were admissible under hearsay exception for statements made for the purposes of medical diagnosis or treatment. Psychiatrist testified he had interviewed child to help the agency determine if she had been abused and, if so, what course of action to take. Isolating a child from an abuser may be part of treatment for abuse. 

Cooley v. State, 76 So. 3d 210 (Miss. Ct. App. 2011). Child’s statements made to school nurse, including his identification of mother’s boyfriend as the perpetrator, was admissible in criminal child abuse proceeding. The statement qualified under the hearsay exception for statements made for the purposes of medical diagnosis or treatment. The child’s identification of the perpetrator, a member of his household, was relevant to treatment that might include prevention or psychological services.

Little v. State, 72 So. 3d 557 (Miss. Ct. App. 2011).
Trial court properly admitted statements of minor child in prosecution of molestation charges because the 11–year-old child met the tender years hearsay exception and there were indicia of reliability. Though the court did not specifically address the reliability factors suggested in the comments to the hearsay exception rule, this was not in error since the court took extensive testimony from the social worker regarding her experience, training in forensic interviewing, and use of nationally recognized protocol for forensic interviews.

WITNESS TESTIMONY

Nunnery v. State, 126 So.3d 105 (Miss. Ct. App. 2013). Trial court properly allowed leading questions to be asked of child witness in criminal sex abuse trial that resulted in her mother’s conviction. While mother was correct that leading questions should generally not be used on direct examination, they are allowed when necessary to develop testimony due to a child’s age and maturity.

Pickett v. State, 143 So.3d 596 (Miss. Ct. App. 2013). Trial court did not err in allowing licensed clinical social worker to testify as an expert in criminal child abuse trial. Stepfather’s claim that her diagnoses could not be tested for reliability, as required by evidence rules, since she based them on statements from the child and mother and did not attempt to corroborate them lacked merit. Prior case law indicates that even though accuracy of clinical interviewing is difficult to test, it is admissible. 

CUSTODY

THIRD PARTIES

Davis v. Vaughn, 126 So.3d 33 (Miss. 2013). While grandmother was entitled to certain rights after she had assumed care of child after mother died, her in loco parentis status did not give her rights equal to the father and she was unable to show he was unfit via abandonment. While he had agreed to her keeping custody for some years while he finished school, this did not rise to the level of abandonment. 

REPRESENTATION

Carter v. Carter, 2016 WL 7014021 (Miss.). In proceeding on father’s motion to modify physical custody of daughter, trial court did not abuse discretion in failing to appoint guardian ad litem  (GAL). Issues father raised to show material change in circumstances had occurred, including conditions of mother’s residence and daughter’s health and care, were not argued to support charge of abuse or neglect, triggering mandatory GAL appointment.

DELINQUENCY

RIGHT TO REMAIN SILENT

Benjamin v. State, 116 So.3d 115 (Miss. 2013). Trial court erred in failing to suppress statements teen made after invoking his right to remain silent. Officer’s actions in encouraging mother to talk to youth about telling his side of the story and misleading them about whether his speaking further would determine whether they would be detaining him, was likely to induce potentially incriminating statements and amounted to continuing interrogation after right to remain silent was invoked. 

DEPENDENCY

PATERNITY

Doe v. Smith, 2016 WL 5242935 (Miss.). Putative father filed petition to determine paternity, reopen child’s adoption, and set aside child’s adoption. Paternity test revealed alleged father was child’s biological father. Juvenile court found mother concealed identity of father during adoption proceeding and set aside adoption. Adoptive mother appealed. Mother’s conduct constituted fraud upon court so juvenile court could consider father’s petition even though he was not party to adoption.

SIBLING PLACEMENT

In re S.G.M., NOTICE 97 So.3d 702 (Miss. 2012). Where court held adjudicatory hearing and found no evidence of abuse, it erred in later holding another hearing and placing siblings with their aunt. A petition regarding the siblings had not been filed and even if agency’s investigation was ongoing, youth were never notified of the second hearing, invalidating that proceeding.

TERMINATION OF PARENTAL RIGHTS

ADOPTIVE PARENTS

K.K. v. N.F., 53 So.3d 870 (Miss. Ct. App. 2011). In proceeding in which first set of adoptive parents who consented to child’s adoption by second set of adoptive parents filed motion to set aside second adoption and terminate second adoptive parents’ rights, evidence did not support termination of second adoptive parents’ rights and chancellor’s decision granting second adoptive parents’ requests for protection order was not an abuse of discretion.

LEGAL REPRESENTATION

Farthing v. McGee, 158 So.3d 1223 (Miss. Ct. App. 2015). Mother sought termination of divorced father’s rights to son. When deciding if termination of parental rights is proper, court must include findings of fact and summary of guardian ad litem’s (GAL) recommendations. Court ruled contrary to GAL’s recommendation that father’s rights be terminated but record showed no evidence court considered GAL’s findings and order did not address those recommendations.

MORAL FITNESS

Hartley v. Watts, 2017 WL 841078 (Miss. 2017). The Mississippi Supreme Court upheld a termination of parental rights decision upon concluding the biological father was morally unfit. The court’s moral unfitness determination arose from the father’s sex offender status, adulterous relationships, fathering children out-of-wedlock, dishonesty before the trial court, probation violation, and role in causing his current wife to lose custody of her own children in a separate proceeding.