In the Interest of J.K., a Minor: Merle Glenn Kirkley v. Jackson County Department of Child Protection Services and J.L.M.K., a Minor, by and through his Next Friend, LaQuita Reed

Pascagoula, MS - Custody lawyer represented Merle Kirkley with appealing the termination of his parental rights.

¶2. Kirkley and Cierra Cavanagh had a child, “John,” who was born in November 2014.



On April 17, 2015, a social worker for the Jackson County Department of Child Protection

Services (CPS) conducted a welfare check on the five-month-old child at a motel in Ocean

Springs, Mississippi. Police found Xanax, marijuana, liquid steroids, three Oxymorphone

pills, and a Suboxone strip in the room. Kirkley and Cavanagh were arrested for possession

of a controlled substance (a misdemeanor), and John was taken into the custody of the

Department of Human Services (DHS).

¶3. On April 21, 2015, the youth court judge appointed Denise Lee as the child’s

guardian ad litem (GAL). Kirkley was arrested again, on April 29, 2015, for possession of

controlled substances in Harrison County. He entered Wings of Life for drug treatment on

May 26, 2015, but left the facility one month later and entered another drug rehabilitation

facility in Warren County in December 2015.

¶4. After three continuances, a youth court hearing was held on May 26, 2015. Kirkley,

Cavanagh, theGAL, CPS/DHS representatives, and John’s foster mother were in attendance

at the hearing. The court ordered that custody of the child remain with the DHS, and an

adjudication hearing was scheduled for June 10, 2015. The order also noted that “the

permanent plan is reunification” and that the permanency hearing would be held on

November 16, 2015. Kirkley was given a drug screen and tested positive for

methamphetamine.

¶5. The following day, May 27, 2015, the Jackson County prosecuting attorney

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A pseudonym is being used to protect the child’s identity.

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electronically filed a petition with the youth court, alleging that John was a neglected child,

and a summons was sent to Kirkley. On June 10, the youth court entered an order, stating

that a first call/adjudication hearing had been held and that both parents had denied the

allegations in the petition. The parents were granted supervised visitation with John.

¶6. An adjudication hearing was held on October 26, 2015, with Kirkley attending via

telephone because he was incarcerated in Louisiana for a parole violation. Both Kirkley and

Cavanagh withdrew their former denials and entered a plea of no contest; so the child was

adjudicated as a neglected child on the counts contained in the petition. Kirkley and

Cavanagh waived the waiting period for disposition, and the youth court proceeded with that

hearing. See Miss. Code Ann. § 43-21-601 (Rev. 2015). The DHS outlined the tasks the

parents needed to complete for reunification with John, including drug screens, parenting

classes, and aftercare programs. Specifically with regard to Kirkley, the DHS stated that he

would be required to complete an alcohol and drug treatment program. Kirkley agreed to

these requirements.

¶7. On April 4, 2016, a Harrison County Circuit Court grand jury indicted Kirkley for

two counts of possession of a controlled substance, stemming fromhis April 29, 2015 arrest.

The youth court entered an order on April 19, 2016, stating that a permanency hearing was

held with neither parent in attendance. The court also noted:

Merle Kirkley failed to complete [alcohol and drug] treatment, and later was

arrested on August 1, 2015. Since then Mr. Kirkley was ordered to drug court

and he was participating in the love in action ministries in Laurel, MS. I

spoke with the director of the program on April 18, 2016, and she indicated

that “Merle is on the run.” She indicated that he left the program.

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The youth court adopted the permanency plan for “reunification with a parent or primary

caretaker,” as well as the concurrent plan for adoption, finding them in the child’s best

interest. The court further concluded, however, that the DHS had “documented compelling

and extraordinary reasons why termination of parental rights would not be” in John’s best

interest at that time.

¶8. Kirkley was arrested in Louisiana and incarcerated at West Baton Rouge Parish

Detention Center fromApril 23, 2016, to October 25, 2016. On July 11, 2016, a plan review

hearing was held, wherein the youth court modified the permanent plan from reunification

to TPR/adoption. Although neither parent attended the hearing, both parents were granted

supervised visitation upon arrangement with the CPS.

¶9. A permanency review hearing was held on October 19, 2016. Kirkley attended via

telephone. The youth court determined that the DHS had made reasonable efforts to

effectuate a plan to meet the needs and best interest of the minor and accepted the

recommended permanencyplan of TPR/adoption. A permanencyhearing was scheduled for

April 17, 2017, and the youth court ordered Kirkley to keep his address and telephone

number updated and to notify the court if he wished to participate in the permanency hearing

via telephone.2



¶10. Kirkley entered a guilty plea to one count of possession of a controlled substance in

the Harrison County Circuit Court on March 20, 2017, and he was sentenced to serve three

2 The court’s order noted Kirkley’s address as “C/O Inmate #662020, West Baton

Rouge Detention Center, D Dorm, Bed 8, P.O. Box 620, Port Allen, LA 70767.”

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years in the custody of the Mississippi Department of Corrections (MDOC).3 Kirkley was

given a new family-service plan on March 23, 2017, requiring him to submit to random drug

screens, “enroll and complete an after care program for a minimum of [twelve] months

within five days of completion of inpatient treatment as approved by the [CPS], . . .

[p]rovide a safe, stable, drug and violence free home for [John],” and maintain contact with

the child and the CPS. On May 8, 2017, the youth court entered an order continuing the

hearing until May 17, 2017. The court’s order noted Kirkley’s mailing address was “C/O

MDOC #150090, CMCF, 3794 Hwy 468, Pearl, MS 39208.”

¶11. On March 27, 2017, the DHS filed a TPR petition with the youth court, which noted

the couple’s (1) habitual drug use, (2) failure to complete alcohol and drug treatment, (3)

unwillingness to provide “reasonably necessary food, clothing, shelter, or medical care for

the child,” and (4) failure to “exercise reasonable visitation or communication with the

child.” The petition asserted that termination of Cavanagh’s and Kirkley’s parental rights

was “appropriate,” as reunification between Cavanagh or Kirkley and John was not

“desirable towards obtaining a satisfactory permanency outcome.”

¶12. On May 17, 2017, the youth court held the permanency hearing, with the GAL,

CPS/DHS representatives, foster mother, and Kirkley present. The DHS was unable to

locate Cavanagh, and it was later discovered she was in Illinois with family but planned to

enter a rehabilitation facility in California. The court found that the DHS had made

reasonable efforts towards the permanencyplan ofreunification previouslyadopted on April

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As part of a plea bargain, Count II was retired to the files.

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19, 2016. The youth court set a TPR hearing for August 8, 2017, and appointed Kirkley an

attorney to represent him at that hearing. A week later, on May 25, 2017, the youth court

issued an amended order, which stated that the permanency plan for reunification was “no

longer appropriate . . . and [that] the permanency plan of TPR/adoption [was] appropriate

and in the best interest of [John.]” Cavanagh filed a motion for a continuance in August

2017, which the youth court granted, rescheduling the hearing for November 7, 2017.

¶13. The GAL, CPS/DHS representatives, foster parents, Kirkley, and Cavanagh were

present at the November 7 hearing, along with Kirkley’s appointed attorney. At the hearing,

Kirkley acknowledged his prior criminal history, including a malicious mischief conviction

in 2009 and a business burglary conviction in 2012. He also agreed that he had been

incarcerated for a majority of time that John was in the DHS’s custody and was unable to

complete his service plan.

¶14. Gloria Sims, the DHS social worker assigned to the case, testified that Kirkley had

been given two service plans, one in 2015 and one in 2017 after he had been incarcerated.

The 2017 plan stated that Kirkley needed in-patient treatment and “to maintain visitations

with child as approved by [CPS].” Because he was incarcerated, he was allowed to write

letters to the child. Kirkley was also to obtain and maintain financial stability, have random

drug screens, “[r]efrain from physical and verbal altercations,” and enroll in aftercare upon

release from prison. Sims testified that Kirkley had not completed the service plan. Sims

also testified that Kirkley had seen John only six times since the child had been in DHS

custody (over two years), specifically noting that Kirkley had not seen John since March

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2016 due to his incarceration because the agency does not take children to visit inmates.

Sims opined that there was a substantial erosion of the relationship between Kirkley and his

son.

¶15. The TPR hearing was continued until January 25, 2018, and the permanency review

hearing was continued until April 16, 2018. Sims again discussed the DHS’s efforts to help

Kirkley complete his service plan, but, as mentioned in the prior hearing, the agency was

“very limited” in what it could do except to tell him to “participate in any and all services

or programs that they have while they’re incarcerated.” A December 27, 2017 order from

the Warren CountyCircuit Court was also entered into evidence, stating that Kirkley’s prior

suspended sentence for business burglary had been revoked. The circuit court sentenced

Kirkley to seven years in the custody of the MDOC, “suspended upon completion of the

Jackson CountyRestitution Center, and that upon completion of the Restitution Center, that

the defendant be placed on post release supervision for a period of five (5) years.” Kirkley

was also ordered to pay $4,177.50 in unpaid fines, fees, and assessments. The January 25

hearing was continued until March 1-2, 2018. Both Kirkley and Cavanagh were present at

the March 2018 TPR hearing, as well as Kirkley’s attorney, the GAL, the foster parents, and

various DHS representatives.

¶16. On April 16, 2018, after hearing all the testimony, reviewing the evidence, and

considering the GAL’s report and testimony from the November 7, 2017 hearing, the youth

court issued its findings of fact and conclusions of law. The youth court determined that

Kirkley “ha[d] been incarcerated for the majority of . . . [John’s] life . . . [and] ha[d] a

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history, by his own admission, of drug use and criminal activity.” The court also noted that

due to Kirkley’s continual incarceration and the child’s young age, Kirkley had “not been

able to sustain a relationship with [John.]” Concluding that Kirkley’s “pattern of criminal

behavior and drug use [was] not likely to change in the future,” the youth court found that

termination of Kirkley’s parental rights was in the child’s best interest.4 On June 12, 2018,

the youth court entered its final judgment terminating Cavanagh’s and Kirkley’s parental

rights, citing grounds for termination as set forth in Mississippi Code Annotated section 93-

15-121(c)-(f) (Supp. 2017). Aggrieved, Kirkley appeals from the youth court’s judgment.

STANDARD OF REVIEW

¶17. This court’s standard of review of a judgment terminating parental rights is limited

to whether the trial court’s decision was manifestly in error or clearly erroneous. In re

A.M.A., 986 So. 2d 999, 1009 (¶21) (Miss. Ct. App. 2007) (citing G.Q.A. v. Harrison Cnty.

Dep’t of Human Servs., 771 So. 2d 331, 335 (¶14) (Miss. 2000)). “Under this standard, we

will uphold [a youth court’s] decision unless that decision is not supported by ‘substantial,

credible evidence, giving deference to the youth court’s findings of fact.’” Id. (quoting

G.Q.A., 771 So. 2d at 335 (¶14)).

DISCUSSION

I. Whether the youth court had jurisdiction over the adjudication

and TPR proceedings.

¶18. Mississippi Code Annotated section 43-21-451 (Rev. 2015) provides in part:

4 The court also terminated Cavanagh’s parental rights, but because Cavanagh is not

a party to this appeal, we will not address the court’s findings with regard to the termination

of her parental rights unless pertinent to the issues Kirkley has raised.

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All proceedings seeking an adjudication that a child is a delinquent child, a

child in need of supervision, a neglected child or an abused child shall be

initiated by the filing of a petition. Upon authorization of the youth court, the

petition shall be drafted and filed by the youth court prosecutor unless the

youth court has designated some other person to draft and file the petition.

(Emphasis added). Although Kirkley acknowledges that the prosecuting attorney submitted

the petition with his digital signature through the Mississippi Youth Court Information

DeliverySystem(MYCIDS) on May 27, 2015, he contends that the petition was not properly

filed with the clerk’s office. Thus, Kirkley claims that the youth court was without

jurisdiction to adjudicate John as a neglected child and, likewise, to terminate Kirkley’s

parental rights. Kirkley further reasons that his service of summons was defective because

“[w]ithout a filed petition, there is no petition.” (Emphasis added). See Miss Code Ann.

§ 43-21-505(1) (Rev. 2015) (Unless otherwise provided, “service of the summons shall be

made personally by delivery of a copy of the summons with a copy of the petition in a sealed

envelope attached to the summons.”). We find no merit to either claim. With his certified

digital signature, the prosecuting attorney submitted the petition to the clerk’s office, and the

record indicates that the petition was filed on the youth court’s general docket as Cause No.

30-YC-2015-P-277-1(284042) on May 27, 2015.

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¶19. Kirkley also argues that the summons failed to “inform him of his right to counsel or

his right to a continuance for a reasonable time to consult with counsel.” Mississippi Code

Annotated section 43-21-503 (Rev. 2015) provides a template for the form ofsummons and

contains the following language: “You have a right to be represented by an attorney. You

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On January 18, 2006, the Mississippi Supreme Court authorized the use of digital

signatures on documents issued by the youth courts in the state using the MYCIDS system.

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are requested to immediately notify the youth court of the name of your attorney.” Section

43-21-503 provides that the form of the summons should “substantially” conform to the

statute’s language. Id. Rule 22 of the Uniform Rules of Youth Court Practice also states

that “[t]he form of the summons shall be pursuant to section 43-21-503” and contains an

additional notice to be placed at the bottom of the summons addressing various costs that

a party may be required to pay. Kirkley’s summons contained this required notice.

¶20. We find the summons issued to Kirkley, notifying him of the June 10, 2015

adjudication hearing, “substantially” complied with section 43-21-503 and Rule 22. While

the summons did not specifically contain the phrase, “You have a right to be represented by

an attorney,” it did state the following in capital letters and bold type: “IMPORTANT

NOTICE: . . . MERLE KIRKLEY YOU MUST BE REPRESENTED BY AN

ATTORNEY IN THIS CAUSE UNLESS THE RIGHT TO LEGAL

REPRESENTATION IS WAIVED.” Moreover, the youth court judge appointed counsel

to represent Kirkley in subsequent proceedings. Thus, unlike the cases cited in Judge

McCarty’s separate opinion, we find Kirkley was given notice of the adjudication

proceedings and informed that representation by counsel was a right that could be waived.

We have also found no requirement in the youth court practice rules or applicable statutes

that the summons must contain language informing a party of a right to a continuance.

Because Kirkley has not demonstrated that service of process was defective, or shown any

prejudice as a result of any alleged defect, we find this issue is without merit.

II. Whether the youth court erred in finding the termination of

Kirkley’s parental rights was supported by clear and convincing

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evidence.

¶21. In its June 12, 2018 “Judgment Terminating Parental Rights,” the youth court found

by clear and convincing evidence that it was in the best interest of John that Kirkley’s and

Cavanagh’s parental rights be terminated, citing section 93-15-121(c)-(f) of the Mississippi

Code,6 which sets forth the grounds for involuntary termination of parental rights and

provides in pertinent part:

Any of the following, if established by clear and convincing evidence, may be

grounds for termination ofthe parent’s parental rights ifreunification between

the parent and child is not desirable toward obtaining a satisfactory

permanency outcome:

. . . .

(c) The parent is suffering from habitual alcoholism or other

drug addiction and has failed to successfully complete alcohol

or drug treatment;

(d) The parent is unwilling to provide reasonably necessary

food, clothing, shelter, or medical care for the child . . . ;

(e) The parent has failed to exercise reasonable visitation or

communication with the child;

(f) The parent’s abusive or neglectful conduct has caused, at

least in part, an extreme and deep-seated antipathy by the child

toward the parent, or some other substantial erosion of the

relationship between the parent and the child[.]

Miss. Code Ann. § 93-15-121(c)-(f). The youth court determined that both parents

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In 2016, the Legislature amended the Mississippi Termination of Parental Rights

Law, deleting the prerequisites formerly provided in section 93-15-103(1) and setting forth

the requirements for termination of parental rights in sections 93-15-115 to 93-15-121. See

2016 Miss. Laws ch. 439, § 9 (H.B. 1240). These new statutes were enacted prior to the

TPR hearings and were cited in the youth court’s findings of fact and final judgment.

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suffer[ed] from habitual alcoholism or other drug addiction and [had] failed

to successfully complete alcohol and/or drug treatment, . . . [were] unwilling

to provide reasonably necessary food, clothing, shelter, or medical care for

[John], . . . failed to exercise reasonable visitation or communication with the

child, . . . [and that their] abusive or neglectful conduct ha[d] caused, at least

in part, an extreme and deep-seated antipathy toward the parent[.]

Kirkley appeals from the judgment, claiming that the youth court failed to make specific

findings of fact regarding the grounds for termination of Kirkley’s parental rights and erred

in adopting the GAL’s recommendation, which he claimsfailed to show that the GAL made

any independent investigation.

A. The GAL’s Findings

¶22. Mississippi Code Annotated section 93-15-107(1)(d) (Supp. 2016) requires that a

GAL be appointed to protect the interest ofthe child in a termination-of-parental-rights case.

A GAL’s requirements are to “be competent, without interests adverse to the child, and

adequately informed as to her duties,” as well as “to act as a representative of the court and

to assist the court in protecting the interests of an incompetent person by investigating and

making recommendations to the court.” R.L. v. G.F., 973 So. 2d 322, 325 (¶11) (Miss. Ct.

App. 2008) (citation and internal quotation marks omitted).

¶23. At the March 2018 hearing, Kirkley’s attorney objected to the admission of the

GAL’s report as hearsay, but the youth court judge overruled the objection, noting that a

GAL report is required. Kirkley argues on appeal that the court erroneously relied on the

GAL’s report because there is no documentation by the GAL that she “ever personally

observed, or interviewed or even spoke to the child, the father, or the mother.”

¶24. It is admittedly unclear fromthe record whether the GAL met or interviewed the child

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or Kirkley independently. However, in R.F. v. Lowndes County Department of Human

Services, 17 So. 3d 1133, 1139 (¶20) (Miss. Ct. App. 2009), this Court held that while it

“may be appropriate” for the GAL to contact or interview the natural parent, it is not

required. As the record indicates, Kirkley was incarcerated during much of this period.

¶25. With regard to a GAL’s failure to conduct an interview with the child, the supreme

court has stated that it would be difficult “to imagine that a [GAL], without ever visiting the

children he/she represents, can be fully informed as to their best interests.” M.J.S.H.S. v.

Yalobusha Cnty. Dep’t of Human Servs. ex rel. McDaniel, 782 So. 2d 737, 741 (¶16) (Miss.

2001). In M.J.S.H.S., the GAL based his recommendation that the mother’s parental rights

should be terminated “on records and reports from[DHS], and conversationswith [the social

worker] and the [child’s therapist].” Id. at 739 (¶7). The GAL did not speak with the

children or mother. Id. The supreme court vacated the termination of parental rights and

remanded for a hearing due to the GAL’s failure “to ‘zealously’ inquire into and protect [the

children’s] best interest.” Id. at 741 (¶18). A year later, in D.J.L. v. Bolivar County

Department of Human Servs. ex rel. McDaniel, 824 So. 2d 617, 622 (¶17) (Miss. 2002), the

supreme court remanded for a limited hearing due to the GAL’s reliance on the transcript

from the termination hearing and failure to provide a report/recommendation until almost

one year after the TPR order. The GAL’s report “merely acknowledge[d] that the [GAL]

agree[d] with the recommendation of the Bolivar County CASA worker in that the son and

daughter should remain in the custody of DHS with plans of attempting adoption.” The

supreme court further noted:

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There is nothing in the record to indicate that the guardian ever talked

privately with the children as required by M.J.S.H.S. There was no

independent report presented to the trial court during the hearing or prior to

the judge’s decision. The guardian did not testify, as has occurred in some

cases, but only limited himself to the cross-examination of other witnesses.

Id.

¶26. “[T]he sole reason for the appointment a [GAL] is to ensure that the best interest of

a minor child is fully sought out and protected.” M.J.S.H.S., 782 So. 2d at 741 (¶17) (citing

Miss. Code Ann. § 93-15-107 (Rev. 1994). In this case, incorporating the GAL’s findings

into its judgment, the youth court determined that the GAL was “experienced and qualified”

and “did a thorough and competent investigation.” We agree. Lee, the GAL, participated

in every youth court hearing and listened to testimony by Kirkley, Cavanagh, the foster

mother, and Sims. Further, unlike D.J.L., Lee provided a thirteen-page report and

recommendation on November 7, 2017, which included an extensive and detailed case

history of the court hearings and all visits/communications between the child, natural

parent(s), the DHS, and the foster parents, dating from April 17, 2015, to October 25, 2017.

With regard to the child’s well-being, the GAL’s report indicates specific knowledge of the

child’s development while in custody, stating:

[John] remains in the home of his foster family . . . where he was placed on

the date of custody, April 17, 2015, at the age of five months. [John] will turn

[three] years old . . . [and] will have celebrated all three (3) of his birthdays in

the State’s custody.

[John] is a happy, smart child. He can count to 20, knows most of his ABC’s

and his primary colors. He is very verbal[,] and his pediatrician says he is

more on the level of a 4-5 years old, according to the foster mother. He has

no known medical issues.

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[John] loves all things outdoors and his favorite thing is to help his foster dad,

who is a mechanic, do anything that requires working with tools. He is

bonded with the immediate and extended foster family and refers to them as

daddy, mama, sissy, nana, etc.

The report concluded, “[Kirkley] has had very few visits with the child since the date of

custody as he has been incarcerated. Currently, it is my understanding that he is serving a

three (3) year sentence. Due to his incarceration and lack of contact[,] the father does not

have a bond with the child.” Although Kirkley claims that the GAL’s conclusion indicates

that her knowledge of the case is simply that—just an “understanding”—nothing in the

evidence or Kirkley’s testimony contradicted the GAL’s findings. Lee also testified at the

hearing as to her findings in the report, and the testimony by the foster parent and Sims

corroborated the GAL’s report/case history.

¶27. At trial, Kirkley’s attorney did not object to the sufficiency of the investigation

conducted by the GAL; nor did he file any post-trial motions concerning the GAL

investigation or lack thereof. Consequently, because the issue is now raised for the first time

on appeal, the youth court never had an opportunity to address it. It is important to note that

the order appointing the GAL for purposes of the TPR hearing in this case was to represent

the “best interest” of the child and did not command a separate investigation from that

already conducted by DHS.

¶28. Accordingly, because the findings in the GAL’s report are consistent with the

evidence and Kirkley’s own testimony, we find that, in this instance, any alleged failure by

the GAL to visit with Kirkley or John independently does not warrant either vacating the

youth court’s termination of Kirkley’s parental rights or a remand for further proceedings.

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This argument is without merit.

B. Termination of Parental Rights Factors

¶29. Kirkleyalso contendsthe youth court’s conclusions concerning the termination of his

parental rights were not supported by clear and convincing evidence. We will address, in

turn, each of the factors discussed by the court in its findings.

i. Habitual Alcoholism and Drug Addiction

¶30. The youth court found in its April 19, 2016 order that Kirkley had “failed to complete

[alcohol and drug] treatment, and later was arrested on August 1, 2015.” Kirkley claims that

the youth court erred in finding that he suffered from alcoholism or drug addiction and that

he had failed to successfully complete alcohol and drug treatment programs.

¶31. Kirkley was arrested twice in April 2015 for possession of controlled substances. He

contends that his incarceration restricted his opportunities to comply with the court’s

requirement, but as CPS argues in its brief,

[Kirkley] did not remain incarcerated throughout the entire case. There were

several times that he was free and capable of showing [DHS] that he could

maintain a stable, drug free lifestyle. However, it was [his] choice[] to

continue to engage in criminal behavior and drug use that prevented him from

proving that he could maintain that lifestyle.

As the court noted, although Kirkley “was ordered to drug court and . . . was participating

in the love in action ministries in Laurel, MS,” the program’s director told the youth court

judge that Kirkley had left the program. The only evidence presented by Kirkley that he

completed anyprogramwas a certificate froma “Life Learning Program” while incarcerated

that was not approved by the court or CPS. Thus, we find no error in the youth court’s

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finding that Kirkley suffered from habitual alcoholism or drug addiction and failed to

complete alcohol/drug treatment.

ii. Unwillingness to Provide Reasonable Necessary

Food, Clothing, Shelter, or Medical Care

¶32. We further find no error in the youth court’s determination that Kirkley was

“unwilling to provide reasonably necessary food, clothing, shelter, or medical care for the

child.” In April 2015, while under the parents’ care, the child was found in a motel room

with controlled substances present. When asked at the November 2017 TPR hearing if he

agreed that he “ha[d] not been able to provide [the] child a stable, drug-free and violencefree home environment because [he had] been incarcerated,” Kirkleyreplied, “Yes, ma’am.”

Kirkley’s pattern of criminal behavior and his failure to contribute to the child’s well-being

during the thirty-one months John was in the DHS’s custody constituted clear and

convincing evidence that Kirkley was unwilling to provide adequate care for the child.

iii. Failure to Exercise Reasonable Visitation or

Communication with Child

¶33. With regard to Kirkley’s claim that he was deprived of chances to interact or

communicate with the child, the DHS social worker, Sims, explained at the November 2017

hearing that the agency’s policy is not to take children to visit an incarcerated parent.

Subsequently, at the January 2018 hearing, when Sims was asked if she felt “that [DHS]

could have made any additional efforts as far as reunification with Mr. Kirkley,” she replied,

“With Mr. Kirkley, no. Again, as you see, he is still incarcerated, and we’re very limited

with what we can do.” The GAL’s report indicated that DHS representatives visited Kirkley

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in Harrison County detention facilities in February and March 2017, but noted that “there

[was] no clear release date.” As Sims aptly noted at one of the hearings,“[I]t was not the

agency[’s] choice that Mr. Kirkley decided to be in and out of jail[.]” We find the court’s

determination that Kirkley “failed to exercise reasonable visitation or communication with

the child” is supported by the evidence.

iv. Abusive or Neglectful Conduct Causing Extreme

and Deep-seated Antipathy by the Child toward

the Parents

¶34. The youth court found that Kirkley was unable to sustain a relationship with his son

due to the child’s young age and Kirkley’s incarceration. Kirkley argues that his

incarceration cannot be the sole basis for finding his relationship with John was eroded or

non-existent, and he claims the relationship was “worsened by the youth court and [DHS].”

Noting his letters addressed to the youth court, Kirkley contends that he had made attempts

to establish a relationship with the child.

¶35. “A finding ofsubstantial erosion of the parent/child relationship necessarily involves

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

initiated.” In re K.D.G. II, 68 So. 3d 748, 752-53 (¶22) (Miss. Ct. App. 2011) (quoting

G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 338 (¶29) (Miss. 2000)).

For over a year prior to the TPR proceedings, John remained in DHS custody, with minimal

contact with his natural father due to Kirkley’s incarceration. At the time the termination

proceedings were initiated, Kirkley was still incarcerated, and John had been in foster care

for almost two years. As noted by the GAL in her report, John identified the foster parents

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as his parents, calling them “daddy” and “mama.” The GAL further remarked in her

testimony that she was not sure that “the child would even recognize [Kirkley].”

¶36. In its findings of fact and conclusions of law, the youth court recognized that

“[a]lthough incarceration cannot be the sole basis for termination, the results, i.e. erosion or

non-existence of the relationship, can be considered a significant factor when determining

whether rights should be terminated.” (Citing In re Clark, 611 P.2d 1343, 1345 (Wash. Ct.

App. 1980)).7 We addressed a similar situation in In re K.D.G. II, 68 So. 3d 748, 753 (¶22)

(Miss. Ct. App. 2011), where the father had been incarcerated for three of the six years his

children were in the custody of the DHS. This Court found clear and convincing evidence

to support the youth court’s termination of parental rights, holding:

Here, the eroded relationships were a result of KDG’s actions. . . . [T]he youth

court provided KDG the opportunity to act as a father to his sons through

complying with the permanencyorder—an opportunity, the youth courtfound,

he totally walked away from. The youth court weighed this along with the

fact KDG had been out of jail for over a year and a half prior to the

permanency order without making significant efforts to communicate with or

support his sons.”

Kirkley’s illegal activities and continuous incarceration were of his own making; it was not

the fault of the court or the DHS. Further, we reiterate the CPS’s argument that Kirkley had

an opportunity to demonstrate that he “could maintain a stable, drug free lifestyle,” but he

continued to use drugs and “engage in criminal behavior.” Therefore, we find no manifest

error in the youth court’s determination that Kirkley’s absence and lack of communication

7

In Clark, 611 P.2d at 1345, the Court of Appeals of Washington held, “Mere

imprisonment of the father is not sufficient of itself for an order of deprivation, but it is not

a factor to be ignored.”

19

between him and his son had resulted in a substantial erosion of the parent-child

relationship.

Accordingly, we find the court did not err in finding “by clear and convincing

evidence” that it was in the child’s best interest to terminate Kirkley’s parental rights.



AFFIRMED.