IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA-1376 MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, STATE OF MISSISSIPPI AND JAKEIDA J.

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1 E-Filed Document Jun :22: CA Pages: 16 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA-1376 DANNY P. HICKS, II APPELLANT VERSUS MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, STATE OF MISSISSIPPI AND JAKEIDA J. CARTER APPELLEE BRIEF OF THE APPELLEE On Appeal from the Chancery Court of Hinds County, Mississippi ORAL ARGUMENT NOT REQUESTED Matthew Garrett Clark (MSB# ) Jennifer A. Coleman (MSB# ) David Lee Love (MSB#10439) MS Department of Human Services 4777 Medgar Evers Blvd. Jackson, MS Phone: (601) matthew.clark@mdhs.ms.gov jennifer.coleman@mdhs.ms.gov david.love@mdhs.ms.gov ATTORNEYS FOR APPELLEE

2 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF AUTHORITIES...ii STATEMENT OF THE ISSUES...1 STATEMENT OF THE CASE...2 SUMMARY OF THE ARGUMENT...4 ARGUMENT Pursuant to Mississippi Code Annotated section (3), the lower court did not err in its determination that Hicks should be precluded from disestablishing paternity of Janiyah. 2. None of Hicks assignments of error warrant a reversal of the lower court. A. Hicks argument that the trial court erred in questioning Carter without swearing her is procedurally barred. Additionally, any error that may have occurred is harmless. B. Hicks argument that he should be allowed to disestablish the paternity of Janiyah pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure and Mississippi Code Annotated section is without merit. C. Hicks argument that he should be allowed to disestablish paternity because he was a minor when the child was conceived is without merit. D. Hicks argument that paternity disestablishment is in the best interest of the child is without merit. E. Hicks argument that Mississippi Supreme Court s ruling in M.AS. v. Miss. Dep t of Human Servs. requires Janiyah s paternity to be set aside is without merit. CONCLUSION...12 i

3 TABLE OF AUTHORITIES MISSISSIPPI CASES Brown v. Weatherspoon, 101 So.3d 173 (Miss.App. 2012)...10 Estate of Miles v. Burcham, 127 So.3d 213 (Miss. 2013)...6 Foster v. State, 639 So.2d 1263 (Miss. 1994)...6 Franklin Collection Servs., Inc. v. Kyle, 955 So.2d 284 (Miss. 2007)...4 Hamilton v. McGill, 352 So.2d 825 (Miss. 1977)...8 In Re Guardianship of Duckett, 991 So.2d 1165, 1181 (Miss. 2008)...4 Jones v. Mallett, 125 So.3d 650 (Miss. 2013)...3,5 Lauderdale County Dep t. of Human Servs. v. T.H.G. and L.D.G., 614 So.2d 377, 383 (Miss. 1992)...9 M.A.S. v. Miss. Dep t of Human Servs., 842 So.2d 527 (Miss. 2003)...5,10-11 Miss. Dep t of Human Servs. v. Helton, 741 So.2d 240 (Miss. 1999)...4,9 Miss. Methodist Hosp. and Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600 (Miss.2009)...4 Moran v. Fairley, 919 So.2d 969 (Miss.App. 2005)...8 Nichols v. Tedder, 547 So.2d 766 (Miss. 1989)...4 Rubenstein v. State, 941 So.2d 735 (Miss. 2006)...6 Snapp v. Harrison, 699 So.2d 567 (Miss. 1997)...6 Wallace v. Town of Raleigh, 815 So.2d 1203, 1206 (Miss. 2002)...4 MISSISSIPPI STATUTES Miss. Code Ann (4)...8 Miss. Code Ann (3)...9 Miss. Code Ann ,5 ii

4 Miss. Code Ann (4)...2 Miss. Code Ann ,2,4-5,7,9-10 Miss. Code Ann (3)...1,3-5,7,9-11 Miss. Code Ann ,5 Miss. Code Ann (2)...2 MISSISSIPPI RULES OF COURT M.R.C.P. 60 (b)...1,3,7,10 MISSISSIPPI RULES OF EVIDENCE M.R.E iii

5 STATEMENT OF THE ISSUES 1. Pursuant to Miss. Code Ann. section (3), the lower court did not err in its determination that Hicks should be precluded from disestablishing paternity of Janiyah. 2. None of Hicks assignments of error warrant a reversal of the lower court. A. Hicks argument that the trial court erred in questioning Carter without swearing her is procedurally barred. Additionally, any error that may have occurred is harmless. B. Hicks argument that he should be allowed to disestablish the paternity of Janiyah pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure and Mississippi Code Ann. section is without merit. C. Hicks argument that he should be allowed to disestablish paternity because he was a minor when the child was conceived is without merit. D. Hicks argument that paternity disestablishment is in the best interest of the child is without merit. 1

6 STATEMENT OF THE CASE The Appellant Danny P. Hicks, II (hereafter Hicks ) and Jakeida J. Carter (hereafter Carter ) had a single sexual encounter prior to the birth of Janiyah Carter (hereafter Janiyah ) on January 5, (Tr. 20; R.E. 40) On October 5, 2007, Hicks established his paternity of Janiyah through non-judicial means by a voluntary acknowledgment in which he consented to be named on Janiyah s birth certificate. (R.E. 3-4) Pursuant to Mississippi Code Annotated sections (4) and (2), Hicks had 1 sixty (60) days to rescind his acknowledgment and reopen the issue of paternity. On November 7, 2008, Hicks entered into a stipulated agreement with the Department of Human Services (hereafter DHS ) in which he admitted paternity and agreed to pay child support in the amount of $ per month. (R.E. 7-11) On February 24, 2009, the stipulated agreement was approved by order of the Hinds County Chancery Court. (R.E. 5-6) The court s approval of the agreement created a judicial establishment of Hicks as Janiyah s legal father. On March 26, 2015, Janiyah and Hicks had their DNA samples drawn for the purpose of a non court-ordered DNA paternity test to determine whether Janiyah was Hicks biological child. (R.E ) The results indicated that Hicks was excluded as Janiyah s biological father. (Id.) Subsequently, Hicks filed a Petition to Disestablish Paternity and Terminate Child Support. (R.E ). A hearing was held on July 17, (R.E. 19) On August 12, 2015, the court entered an order denying Hicks petition pursuant to Miss. Code Ann. section (3)(c). (R.E ) 1 At the time Hicks signed the voluntary acknowledgment of paternity on Janiyah s birth certificate, Miss. Code Ann. section had not yet been adopted. However, sections and were in effect and provided that a legal father could not rescind the birth certificate acknowledgment after 60 days unless he could prove fraud, duress or material mistake of fact. In 2011, when the Mississippi State Legislature adopted section , it also amended sections and to allow a person who signs the voluntary acknowledgment on the child s birth certificate to rescind that acknowledgment within one (1) year rather than sixty (60) days. 2

7 SUMMARY OF THE ARGUMENT The chancellor correctly denied Hicks petition seeking disestablishment of paternity and termination of his child support obligation pursuant to Mississippi Code Annnotated section (3)(c), which prohibits disestablishment of paternity and termination of a child support obligation if a legal father signs a stipulated agreement of paternity that has been approved by order of the court. Hicks signed such an agreement on November 7, 2008, and the court approved it February 24, Section (3)(c) is plain in its language. This is the only section applicable to Hicks s signed agreement. The less-restrictive language of section (3)(d) does not apply, as Hicks s stipulated agreement included the establishment of paternity rather than merely support, and this Court has ruled that section (3)(d) does not apply to signers of stipulated agreements that did not judicially establish paternity. Jones v. Mallett, 125 So.3d 650, 653 (Miss. 2013). Additionally, none of Hicks assignment of errors warrant reversal. The failure of Carter to be sworn at the hearing was not raised at the trial level and amounts to harmless error. Furthermore, Hicks is not entitled to any Rule 60(b) relief as he has not filed a Rule 60(b) motion. Moreover, Hicks was not a minor at the time he signed the stipulated agreement of paternity and the testimony at the hearing does not support a finding of fraud by Carter. Lastly, there was no evidence presented at the July 17, 2015, hearing that disestablishment of paternity would be in the best interest of Janiyah. 3

8 ARGUMENT Standard of Review The case before the Court largely hinges upon the chancellor s interpretation of the provisions contained within Mississippi Code Annotated section Statutory interpretations are questions of law and are reviewed de novo. Franklin Collection Servs., Inc. v. Kyle, 955 So.2d 284, 287 ( 9) (Miss. 2007) (citing Wallace v. Town of Raleigh, 815 So.2d 1203, 1206 (Miss. 2002)). The Supreme Court has held it will not engage in statutory interpretation if a statute is plain and unambiguous. Miss. Methodist Hosp. and Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 607 ( 18) (Miss. 2009) (citing In Re Guardianship of Duckett, 991 So.2d 1165, 1181 (Miss. 2008)). Additionally, the findings of fact of a chancellor, particularly in the areas of divorce and child support, will generally not be overturned on appeal unless they are manifestly wrong. Nichols v. Tedder, 547 So.2d 766, 781 (Miss. 1989). I. Pursuant to Mississippi Code Annotated section (3), the lower court did not err in its determination that Hicks should be precluded from disestablishing paternity of Janiyah. Mississippi Code Annotated section is the operative statute that details how a legal father may disestablish paternity and terminate his child support obligation when he is not the biological father. Hicks fails to meet this criteria pursuant to section (3), which precludes a legal father from disestablishing paternity even with negative genetic testing if he engaged in any of the following conduct: (a) Married or cohabited with the mother of the child and voluntarily assumed the parental obligation and duty to support the child after having knowledge that he is not the biological father of the child; (b) Consented to be named as the biological father on the child s birth certificate and signed the birth certificate application or executed a simple acknowledgment of paternity and failed to withdraw consent or acknowledgment within the time provided for by law in Sections and , unless he can prove fraud, 4

9 duress or material mistake of fact; (c) Signed a stipulated agreement of paternity that has been approved by order of the court; (d) Signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father of the child; (e) Been named as the legal father or ordered to pay support by valid order of the court after having declined genetic testing; (f) Failed to appear for a scheduled genetic testing draw pursuant to a valid court order compelling him to submit to genetic testing. Hicks is precluded from disestablishing paternity of Janiyah and terminating his child support obligation pursuant to the above subsection. Hicks signed a Stipulated Agreement Of Support And Admission of Paternity that was approved by court order, which prohibits disestablishment of paternity pursuant to subsection (3)(c) and makes any other inquiry moot. The Mississippi Supreme Court has interpreted the plain language of subsection (3)(c) to be a bar to paternity disestablishment. Jones at 653. In Jones, the Court found the disestablishment of judicially-approved stipulated agreement of paternity to be barred by the language of subsection (3)(c). Id. In doing so, the Court found that subsection 3(c) affords less opportunity to disestablish a judicially-determined paternity based on a stipulated agreement than a non-judicially-determined paternity, such as one for a child born of marriage. Id. This stands in stark contrast to Hicks s assertions in his brief. As paternity for Janiyah was established by a court-approved stipulated agreement for paternity, Hicks request for paternity disestablishment, like Jones, should be denied. Hicks cites M.A.S. v. Mississippi Department of Human Services to support his argument. 842 So.2d 527, 528 (Miss. 2003). This case is not only factually dissimilar from the case at hand, it also was decided eight years prior to the adoption of the applicable statute, Mississippi Code Annotated section Section II (E) of this brief discusses M.A.S. and its inapplicability at length. 5

10 II. None of Hicks assignments of error warrant a reversal of the lower court. A. Hicks argument that the trial court erred in questioning Carter without swearing her is procedurally barred. Additionally, any error that may have occurred is harmless. Hicks contends that the trial court erred by conversing with Carter on the record without swearing her in. This argument is barred procedurally, as he did not raise a contemporaneous objection at trial. Hicks first mention of this supposed error is in his appellate brief. Indeed, the record excerpts the he submitted with his brief contain no objection to the Court s interaction with Carter. Mississippi Rule of Evidence 103 states, in pertinent part, that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is effected and in case the ruling is one admitting evidence, a timely objection appears of record, stating the specific grounds of objection The Mississippi Supreme Court has repeatedly held that If no contemporaneous objection is made, the error, if any, is waived. Rubenstein v. State, 941 So.2d 735, 751 (Miss. 2006), Foster v. State, 639 So.2d 1263, 1270 (Miss. 1994). In Rubenstein, the Defendant argued for the first time on appeal that some trial testimony was hearsay and thus improperly allowed, but the Court agreed with the State s assertion that where a party fails to raise a contemporaneous objection to a witness s testimony, the party is barred from raising the issue for appellate review. Rubenstein at 751. In the case at bar, the Defendant s failure to raise any contemporaneous objection to the trial court s interactions with Carter precludes him from seeking any relief on appeal. Even if the Defendant s claim that the trial court erred was not barred procedurally, it still would have no real weight. The Mississippi Supreme Court has repeatedly held trial court errors to be harmless when they do not contribute to the verdict of the case. Estate of Miles v. Burcham, 127 6

11 So.3d 213 (Miss. 2013), Snapp v. Harrison, 699 So.2d 567 (Miss. 1997). In the case at bar, the trial court s order denying Hicks motion is based entirely on the undisputed fact that he signed a stipulated agreement of paternity that was approved by the court. None of the statements made by Carter on the record contradict this fact. Therefore, if any error did occur based on Carter s statements, it was harmless. B. Hicks argument that he should be allowed to disestablish the paternity of Janiyah pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure and Mississippi Code Annotated section is without merit. Hicks argues that pursuant to supposed fraud committed by Carter, he should be afforded relief under Rule 60(b) of the Mississippi Rules of Civil Procedure. He claims that Carter kept the possibility of his non-paternity a secret and that such conduct constitutes fraud which would provide him relief under Rule 60(b). However, there is nothing in the record to indicate that Hicks filed a Rule 60(b) motion to set aside the order denying his petition for disestablishment. His initial Petition of Disestablishment of Paternity does not mention Rule 60(b) or fraud, and seems to rely solely on a misreading of Mississippi Code Annotated section (R.E.12-16) Rule 60(b) itself allows for relief only upon the filing of a motion. For these reasons, he cannot be entitled to any relief under Rule 60(b). Hicks also alleges that he should be entitled to relief based upon fraud pursuant to Mississippi Code Annotated section However, such a fraud exception is not provided in subsection 3(c). Subsection 3(b) allows for disestablishment of paternity if there is a finding of fraud in cases where the Defendant signed a birth certificate application or executed a simple acknowledgment of paternity. However, this fraud language is not found in the pertinent subsection of the statute, 3(c), which directly addresses stipulated agreements of paternity. As such, a finding 7

12 of fraud would afford him no relief under this statute. Additionally, the testimony at the July 17, 2015, hearing does not support a finding of fraud. This Court has held that, fraud is never presumed and must be proved with clear and convincing evidence. Hamilton v. McGill, 352 So. 2d 825, 831 (Miss. 1977). Clear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level. Moran v. Fairley, 919 So. 2d 969, 975 ( 24) (Miss. Ct. App. 2005). Hicks claims that Carter knew that he was not the biological father and intentionally kept that information from him. This assertion is not supported by the record. At the July 17, 2015, hearing, Carter s statements indicated that she and Hicks both knew that it was possible that he was not the biological father. (Tr. 4; R.E. 24) The encounter between Hicks and Clark was characterized as a one night stand by Hicks. (Tr.20, R.E 40) Carter also indicated that she and Hicks were both in other relationships at the time of their encounter. (Tr. 14; R.E. 34) She further stated that she told Hicks there was a possibility he was not the biological father. (Tr. 5; R.E. 25) None of those statements by Carter were contradicted by Hicks. As such, there was not clear and convincing evidence of fraud. C. Hicks argument that he should be allowed to disestablish paternity because he was a minor when the child was conceived is without merit. Hick s claims that he was of the tender age of nineteen (19) years when he was subjected to duress by his own family. He further implies that he only signed the stipulated agreement for paternity due to this duress at a tender age. However, Hicks was twenty-one (21) years old when he signed the stipulated agreement of paternity on November 7, (R.E. 4, 9) Even if Hicks had been a minor at the time he signed the stipulated agreement of paternity, he would not be entitled to any relief. Mississippi Code Ann. section (4) states that, [s]uch 8

13 agreements of support, acknowledgments and affirmations of paternity and support shall be sworn to and shall be binding on the person executing same whether he be an adult or a minor... Additionally, subsection (3) states that, [t]he prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court. D. Hicks argument that paternity disestablishment is in the best interest of the child is without merit. Hicks claims that disestablishment of paternity would be in the best interest of Janiyah. In fact, the contrary is true. The testimony at the July 17, 2015 hearing illustrates that it would clearly not be in the best interest of Janiyah to allow Hicks to disestablish himself as her legal father. Both Hicks and Carter agreed he has been a large part of Janiyah s life, and Hicks stated he does not want his relationship with Janiyah to end. Carter stated that as far Janiyah was concerned, that Hicks was still her daddy. (Tr. 15, R.E. 35) She also indicated that he was a good father to Janiyah. Id. Hicks testified that he was actively involved in her education and made attempts to get her into a better school. (Tr , R.E ) Hicks testimony also indicated that Janiyah was part of Hicks 2011 wedding and joined him on family vacations. (Tr. 20, R.E. 40) Hicks admitted that Janiyah still has visits at Hicks parents home. (Tr. 21, R.E. 41) Hicks also indicated that he was not prepared to end his relationship with Janiyah when he testified that, I m not saying that Janiyah cannot come to my house or I m not just pushing her off. Because we ve been - - she knows I m there. It s been eight years. (Tr. 23; R.E. 43) Clearly a bond exists between Hicks and Janiyah. To allow Hicks to legally sever that bond would be inequitable and should be unacceptable as [p]rotecting the best interests of a child is the paramount concern in actions to which a child is a party. Mississippi Dep t of Human Servs. v. Helton, 741 So.2d 240, 242 (Miss. 1999) (citing Lauderdale County Dept. of Human Servs. v. T.H.G. and L.D.G., 614 So.2d 377, 383 (Miss. 1992). 9

14 E. Hicks argument that Mississippi Supreme Court s ruling in M.AS. requires Janiyah s paternity to be set aside is without merit. In arguing that Janiyah s paternity should be set aside, Hicks relies upon language from M.A.S. In that case, the appellant was a seventeen year old who was in a relationship with the mother of the child and who signed a stipulated agreement of paternity without his guardians present. M.A.S. at 528. The Court granted the appellant s Rule 60(B) motion to set aside the paternity judgment when a genetic test, court-ordered for heirship purposes in an unrelated wrongful death case, excluded the appellant as the child s biological father. Id. There are major factual differences between M.A.S. and the case at hand. Hicks was not a minor when he signed his stipulated agreement; the genetic testing was not court-ordered; and contrary to the legal father in M.A.S., Hicks sexual encounter with Carter was a one night stand while both parties were in relationships with other individuals. (TR.14, 20, R.E. 34, 40) However, the most notable difference between M.A.S. and the case at hand is that M.A.S. was handed down in 2003, eight years before the statute pertinent to this case, Miss. Code section , became effective. In Brown v. Weatherspoon, a factually similar case decided in 2012 which affirmed a chancellor s June 8, 2011 decision setting aside a paternity order, the Court made clear that the thenrecent had changed the way cases with signed stipulated agreements would be decided in the future. 101 So.3d 173 (Miss. App. 2012). Footnote 5 to that opinion quotes the language of and then states unequivocally that Because the chancellor entered her judgment on June 8, 2011, she did not apply the amended portions of section (3). Id. at 181. On this present side of the pertinent statute, Hicks s adult decision to sign a stipulated agreement of paternity, with full knowledge of the nature of his and Carter s sexual encounter, precludes a court from setting aside 10

15 the determination of his paternity because the court must apply this unambiguous language of Mississippi Code Annotated section (c): A court shall not set aside the paternity determination or child support order if the legal father engaged in any of the following conduct...(c)signed a stipulated agreement of paternity that has been approved by an order of the court. Therefore Hicks s reliance on M.A.S. in arguing for the disestablishment of Janiyah s paternity has no merit. The relief Hicks seeks is precluded explicitly by statute, and the chancery court s decision should be upheld. CONCLUSION Because the chancellor correctly denied Hicks petition seeking disestablishment of paternity and termination of his child support obligation, the Court should uphold the chancellor s judgment. Respectfully submitted, /s/ Matthew Garrett Clark Matthew Garrett Clark /s/ Jennifer A. Coleman Jennifer A. Coleman Matthew Garrett Clark (MSB# ) Jennifer A. Coleman (MSB# ) David Lee Love (MSB# 10439) MS Department of Human Services 4777 Medgar Evers Blvd. Jackson, MS Phone: (601) Facsimile (601) ATTORNEYS FOR APPELLEE /s/ David Lee Love David Lee Love 11

16 CERTIFICATE OF SERVICE I, David Lee Love, attorney for Appellee, Department of Human Services, State of Mississippi, certify that I have this day filed the Brief of the Appellee with the Clerk of the Court via the electronic filing system, which will send notice via electronic means to the following persons: Chester Ray Jones, Esquire Post Office Box 5141 Jackson, MS Attorney for Appellant Honorable Denise Sweet Owens Chancellor Hinds County Chancery Court Post Office Box 686 Jackson, MS nd This the 2 day of June, 2016 /s/ David Lee Love David Lee Love (MSB# 10439) Mississippi Department of Human Services 4777 Medgar Evers Blvd. Jackson, MS (601)