Website of Interest

I came across the website Compelling Discovery today.  The site is located here.  There are several good articles on there dealing with various discovery issues worth reading. 

Chism v. Bright Revisited

I still do a good bit of adoption work and the ongoing question has been how Chism v. Bright affects and adoption?  Chism v. Bright is located here.  A chancellor discussed this with me on a recent case.  The current consensus seems to be that Chism v. Bright proceeded under the termination of parental rights statute Mississippi Code Annotated 93-15-103. However, adoption proceeds under Mississippi Code Annotated 93-17-7.  The key difference is that the adoption statute does not have the removed from the home by DHS language that the termination statute does.  As such, it is easier to get termination of parental rights in contemplation of an adoption as opposed to just a termination of parental rights.

Petition for Determination of Rights

Mississippi has a procedure for the determination of rights with regard to a father under Mississippi Code Annotated 93-17-6.  The procedure provides a way for an adoption of a child after thirty (30) days has lapsed.  This procedure is essentially a termination of parental rights and waiver of any objection to adoption.  The statute is outlined below and is an expedite way to handle the matter. 

§ 93-17-6. Petition for determination of rights in proposed adoption of natural child.  
(1)  Any person who would be a necessary party to an adoption proceeding under this chapter and any person alleged or claiming to be the father of a child born out of wedlock who is proposed for adoption or who has been determined to be such by any administrative or judicial procedure (the "alleged father") may file a petition for determination of rights as a preliminary pleading to a petition for adoption in any court which would have jurisdiction and venue of an adoption proceeding. A petition for determination of rights may be filed at any time after the period ending thirty (30) days after the birth of the child. Should competing petitions be filed in two (2) or more courts having jurisdiction and venue, the court in which the first such petition was properly filed shall have jurisdiction over the whole proceeding until its disposition. The prospective adopting parents need not be a party to such petition. Where the child's biological mother has surrendered the child to a home for adoption, the home may represent the biological mother and her interests in this proceeding.   (2)  The court shall set this petition for hearing as expeditiously as possible allowing not less than ten (10) days' notice from the service or completion of process on the parties to be served.   (3)  The sole matter for determination under a petition for determination of rights is whether the alleged father has a right to object to an adoption as set out in Section 93-17-5(3).   (4)  Proof of an alleged father's full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:  (a) Provided financial support, including, but not limited to, the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, and contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child; or  (b) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.   (5)  If the court determines that the alleged father has not met his full responsibilities of parenthood, it shall enter an order terminating his parental rights and he shall have no right to object to an adoption under Section 93-17-7.   (6)  If the court determines that the alleged father has met his full responsibilities of parenthood and that he objects to the child's adoption, the court shall set the matter as a contested adoption in accord with Section 93-17-8.   (7)  A petition for determination of rights may be used to determine the rights of alleged fathers whose identity is unknown or uncertain. In such cases the court shall determine what, if any, notice can be and is to be given such persons. Determinations of rights under the procedure of this section may also be made under a petition for adoption.   (8)  Petitions for determination of rights shall be considered adoption cases and all subsequent proceedings such as a contested adoption under Section 93-17-8 and the adoption proceeding itself shall be portions of the same file. 
(9)  Service of process in the adoption of a foreign born child shall be governed by Section 93-15-105(5). 

Interplay of Natural Parent and Paternity Statute

I am beginning work on a complex legal issue involving the interplay of the natural parent presumption and the disestablishment of paternity statute.  The natural parent presumption is found in Mississippi Code Section 93-13-1 (Rev. 2004) which provides that:  “The father and the mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education … If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.” The presumption is rebuttable, upon a clear showing that: the parent has abandoned the child; the conduct of the parent is so immoral as to be detrimental to the child; or the parent is unfit mentally or otherwise to have custody.  This has to be measured against Mississippi Code Annotated 93-9-10 which provides only limited situations where paternity may be disestablished.  The question is whether a legal parent who never disestablished paternity is on equal footing with a natural parent?  If paternity cannot be disestablished, does that not make the legal parent the natural parent by law?  Every case dealing with this issue was prior to the passage of 93-9-10 which is relatively new. 

Payment of Wages at Death

Mississippi Code 91-7-323 provides a way for an employer to pay the wages of a deceased employee.  The statute provides that:  "When any person, male or female, shall die leaving wages, salary or other compensation due him, it shall be lawful for the debtor to pay said wages, salary or other compensation to the wife or husband, as the case may be, of said deceased creditor if he or she leaves a wife or husband, as the case may be, surviving him or her; and if he or she shall leave no wife or husband surviving him or her, then to his or her children if adults; and if he or she shall leave no children and no wife or husband surviving him or her, then to his or her mother; and if he or she shall leave no wife or husband or children or mother surviving him or her, then to his or her father; and if he or she shall leave no wife or children or husband or mother or father surviving him or her, then to his or her brothers and sisters if adults. If such creditor shall have left no wife, husband, children, nor brothers nor sisters, nor father nor mother surviving him "or her, or if any of his or her children surviving him or her shall be minors, or if any of his or her brothers or sisters surviving him or her, entitled to inherit, shall be minors, then it shall be lawful for said debtor to pay said wages, salary or other compensation to the chancery clerk of the county in which said creditor resided at the time of his or her death, or of the county where he or she died.".

There are not too many people familiar with this statute.   However, many employers are not comfortable, perhaps rightly, over turning over wages without an estate open. 

Small Estate Affidavit

Under Mississippi Code Annotated 91-7-322, personal property owed to a deceased person with a value of up to $50,000 may be delivered to his or her heirs or successors by affidavit.  This is often referee to as a small estate affidavit. 

The affidavit can be made at any time after 30 days have passed since the person’s death.  It may be given to “any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent.”  That person is then required to transfer the personal property or the instrument to the successor.

As the name suggests, the use of the Small Estate Affidavit is limited to small estates.  If the estate is worth more than $50,000, the Small Estate Affidavit will not apply. But any secured debt of the estate (for example, a lien on an automobile) can be subtracted from the value of the estate for purposes of computing the $50,000 threshold.

The Small Estate Affidavit is not available if an estate will be opened.  The person making the affidavit must represent that no personal representative (executor or administrator) of the estate has been appointed or is the process of being appointed.  The affidavit must also describe the relationship between the person making the affidavit and the deceased person.  The Small Estate Affidavit is only available to “successors,” which include the surviving spouse, the adult with whom minor children are residing, adult children, or parents of the decedent, in that order.

Once the successor provides the affidavit to the third party, he or she can take whatever actions necessary to deal with the property covered by the Small Estate Affidavit.  Third parties can rely on the statute without fear of liability.  There is no need for the third party to dig further into the truth of the affidavit or otherwise keep up with what happens to the asset after it is transferred to the successor. If the third party simply refuses to transfer the property after having been furnished with a Small Estate Affidavit, the successor can bring a proceeding in chancery court to force the transfer of the property.

This can be helpful in dealing with small amounts of property that need to be transferred without the necessity of a full probate. 

Website of Interest

The Center for Criminal Justice Advocacy has a number of useful trial items on its website located here.  Many of the items of advice overlap into other areas of practice.