Child Abuse

Child abuse is something that never should occur.  Under Mississippi Code Annotated

§ 43-21-353, our legislature placed a mandatory reporting obligation on “any other person” who suspects that a child is being abused and/or neglected.  The statute provides that the willful failure to report the same can result in a fine of up to $5,000.00 and/or one (1) year in prison. 

Nevertheless, take a look at Mississippi Code Annotated § 93-5-23 provides for the assessment of attorney’s fees against a party when the allegations of abuse are proven to be without foundation in the course of litigation.   There is extremely limited case law interpreting the statute.   The American Heritage Dictionary defines “foundation” as the basis or groundwork of anything.  The primary case addressing the “without foundation” standard is Gregory v. Gregory, 881 So.2d 840 (Miss. App. 2003).  In it, the Court of Appeals reversed the ruling awarding a portion of attorney’s fees incurred as a result of allegations of child abuse.  In Gregory, expert testimony was offered showing that some form of abuse had taken place although the trial court did not find the child had been abused.   It appears that when a parties’ actions are based upon an objectively reasonable belief, attorney’s fees should not be awarded.  This appears to be the view adopted in Jones v. Jones, 43 So.3d 465 (Miss. App. 2009) cert denied 49 So.3d 106 (Miss. 2010) on September 9, 2010.  The Court of Appeals stated in ¶42 that

 

“Since we remand this issue for appropriate consideration, we need not address Steven's request for attorney's fees at this time. However, we note that Mississippi Code Annotated section 93-5-23 (Supp. 2009) allows the chancery court, on its own motion, to grant a continuance in custody cases where allegations of child abuse arise, in order to allow DHS to investigate the allegations. Additionally, section 93-5-23 provides that attorney's fees are only appropriate where the child abuse allegations are "without foundation." Here, in finding an award of attorney's fees not warranted, the chancellor explained that Rachel's concerns were well-founded, because on the witness stand, Steven admitted to the underlying behavior investigated by the guardian ad litem. In short, the chancellor found ample foundation in the following: Steven's admissions on the stand; his continuing practice of bathing Sarah even after the guardian ad litem's first report; and his continuing to help Sarah bathe even after the court instructed both parents that the children were of sufficient age to bathe themselves.”

 

However, what happens where a parent has strong suspicions during litigation but no objective proof?  Do they risk paying the attorney’s fees of the other side or risk running afoul of the criminal statute?  From reading the cases, it is hard to tell if the “without foundation” as written in the statute is meant to be measured as a subjective standard, objective standard, or a more draconian approach (i.e. no abuse, automatic attorney’s fees).  The issue almost appears to be purely within the discretion of the chancellor.  To me, §93-5-23 needs to clearly define what “without foundation” is.   Best advice I can give is to have an expert to review the matter if there are suspicions but no objective proof and tread carefully with both statutes in mind.