IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI
NO. _______________
In re:
THE INTEREST OF:
KYLIE JOHNSON, A MINOR; 47-YC-2019-P-158-1(480495)
EMMANUEL JOHNSON, A MINOR. 47-YC-2019-P-157-1(480493)
MATTHEW JOHNSON,
Petitioner
PETITION FOR WRIT OF MANDAMUS
Matthew Johnson
250 S. Chesterman Street, Apt. 3C
Holly Springs, MS 38635
Petitioner, pro se
2
TABLE OF CONTENTS
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
INTRODUCTION 1
ISSUES PRESENTED 1
RELIEF SOUGHT 1
STATEMENT OF FACTS 2
REASONS WHY RELIEF SHOULD BE GRANTED 3
I. The Trial Court erred when it terminated Petitioner’s parental rights without a
clear and convincing evidence of Petitioner’s alleged abusive behavior 3
a) There was no clear and convincing evidence of Petitioner’s
abusive behavior and/or neglect 3
b) The Trial Court violated pertinent requirements of the law on
involuntary termination of parental rights 4
II. The Court’s decision to terminate Petitioner’s parental rights violated the
Petitioner’s liberty and interest in the care, custody, and control of the
children 6
CONCLUSION 7
CERTIFICATE OF SERVICE 8
3
TABLE OF AUTHORITIES
Cases
In re A.M.A., 986 So. 2d 999, 1009 (¶22) (Miss. Ct. App. 2007). 3
In re C.R., 604 So. 2d 1079, 1084 (Miss.1992) 6
Ivy v. Harrington, 644 So. 2d 1218, 1221 (Miss. 1994) 5
Miss. Dep’t of Child Prot. Servs. v. Bynum, 305 So. 3d 1158, 1161 (¶4) (Miss.2020) 6
Troxel v. Granville, 530 U.S. 57, 65 (2000) 6
Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (¶23) (Miss. 2006) 5
Statutes
MS Code § 43-21-601(1) (2019) 6, 7
MS Code § 43-21-601(2) (2019) 6
MS Code § 93-15-121(a) (2016) 4
MS Code § 93-15-121(c) (2016) 3, 4
4
INTRODUCTION
Petitioner submits the following Brief in Support of this Petition for Writ of Mandamus to
compel the Youth Court of Marshall County, Mississippi (hereinafter “the Trial Court”), to vacate
its decision entered on March 3, 2020, that terminated the trial home placement of Emmanuel with
the Petitioner and directed the CPS to obtain other placement for Emmanuel. The order further
directed that the children should not be allowed to be together unless there are two or more adults
present. Lastly, the order provided that the Petitioner shall have visitation twice monthly, to be
supervised by CPS.
Petitioner avers that there are significant legal grounds, extraordinary facts, and
circumstances which justify this court to compel the Trial Court to vacate the aforesaid decision.
Accordingly, the Petition is brought on the ground that the Trial Court erred when it terminated
Petitioner’s parental rights without a clear and convincing evidence of Petitioner’s alleged abusive
behavior; and the Court’s decision to terminate Petitioner’s parental rights was not in the best
interest of the children.
ISSUES PRESENTED
The first issue presented is: Whether the Trial Court erred when it terminated Petitioner’s
parental rights without a clear and convincing evidence of Petitioner’s alleged abusive behavior.
The second issue presented is: Whether the Court’s decision to terminate Petitioner’s
parental rights violated the Petitioner’s liberty and interest in the care, custody, and control of the
children.
RELIEF SOUGHT
The Petitioner requests this Court grant a mandamus relief, and enter a preliminary
injunction barring the enforcement of the Trial Court’s Special Review Order that was issued on
March 3, 2020. Lastly, the Petitioner requests this Court to discharge the Marshall County Child
5
Protective Services (CPS) of its duties and grant the Petitioner sole custody of the children.
STATEMENT OF FACTS
The Petitioner is the father of Emmanuel Johnson, and Kyle Johnson. On or about July 19,
2019, the Marshall County CPS filed a Petition where the CPS alleged that on or about July 13,
2019, Emanuel and Kyle did become abused children based on the alleged abuse by the father and
grandfather. Notably, the CPS alleged that the Petitioner abused Kyle. The CPS also alleged that
the children became neglected when their mother contacted the CPS on or about July 13, 2019, and
requested the children to be removed because “she needed a break from the children”.
On or about February 18, 2020, the Trial Court issued an order continuing adjudication
hearing because the mother was out of the country. In the said order, the Court scheduled the
adjudication hearing for the two cases from February 18, 2020, to March 19, 2020. Further, the
Court held that Emmanuel to go home with the Petitioner for a 90-day trial home placement
beginning February 21, 2020. The Court also held that Kylie remains with her paternal
grandmother since it was recommended upon a counseling session, that she has a mental
disturbance that makes her appear to be a danger to others and should be entered in a mental health
facility.
On March 3, 2020, the Trial Court issued a Special Review Order, terminating the trial
home placement issued on February 18, 2020, directing the CPS to obtain other placement for
Emmanuel. The Court further directed that the children should not be allowed to be together unless
there are two or more adults present. Further, the Court provided that the Petitioner shall have
visitation twice monthly, to be supervised by CPS.
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REASONS WHY RELIEF SHOULD BE GRANTED
I. The Trial Court erred when it terminated Petitioner’s parental rights without a clear
and convincing evidence of Petitioner’s alleged abusive behavior
a) There was no clear and convincing evidence of Petitioner’s abusive behavior
and/or neglect
In Mississippi, there exists a strong presumption in favor of preserving parental rights. See
In re A.M.A., 986 So. 2d 999, 1009 (¶22) (Miss. Ct. App. 2007).
According to MS Code § 93-15-121(c) (2016), termination of parental rights is appropriate
if it can be proved by clear and convincing evidence that:
“[t]he 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;… The
parent has committed an abusive act for which reasonable efforts to maintain the
children in the home would not be required under Section 43-21-603, or a series
of physically, mentally, or emotionally abusive incidents, against the child or
another child, whether related by consanguinity or affinity or not, making future
contacts between the parent and child undesirable;… . A felony assault that
results in the serious bodily injury to the child or another child of the parent.”
Petitioner avers that the Trial Court erred by altering the Petitioner’s parental rights without
sufficient evidence warranting their removal. The Marshall County CPS filed a Petition where the
CPS alleged that on or about July 13, 2019, Emanuel did become an abused child after “another
child in the home was abused by father and grandfather”. The CPS did not provide any clear and
convincing evidence of the allegations of abuse against Petitioner. Besides, on September 23, 2019,
the Petitioner received a report from the Mississippi Department of Child Protection Services
(hereinafter “MDCPS). The report stated that the assessment of allegations of abuse and neglect of
Emanuel and Kyle are unsubstantiated. MDCPS therefore stated that it did not find any evidence of
abuse on the children.
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From the foregoing, it is clear that the CPS lacked sufficient evidence to find that Petitioner
committed acts of abuse on the children. Petitioner has pertinent evidence of the said letter from
MDCPS, which concluded that there was no proof of abuse on the children.
On March 23, 2020, the Petitioner received a letter from the Community Counseling
Services, which informed Petitioner that Kyle began receiving treatment at the institution and that
there has been no report that Kyle has ever been violent in her youth. This report directly conflicts
the Trial Court’s holding in the March 3, 2020’s Special Review Order. Notably, in the Order, the
Court stated that Kyle cannot be together with Emmanuel unless two adults are present. There is
therefore no ground to remove Kyle on the ground of her alleged mental health.
Petitioner avers that the false allegations of abuse were maliciously raised by the mother of
the children. The mother made the said allegations solely with respect to Kyle, yet Kyle was at
school when the mother reported the claim of abuse.
The mother of the child also misrepresented to the court that the Petitioner had arranged for
Emmanuel to be vaccinated a second time. Instead, the Petitioner had always acted responsibly,
especially in regard to the health and welfare of the children.
It follows; contrary to the assertions, the Petitioner is and has been at all times, a loving
father to the children. He has always acted responsibly. Accordingly, the termination of Petitioner’s
parental rights was erroneous because there was no clear and convincing proof of Petitioner’s
abuse, neglect, and irresponsibility.
b) The Trial Court violated pertinent requirements of the law on involuntary
termination of parental rights
Besides, MS Code § 93-15-121(a) (2016) provides that at the beginning of involuntary
termination of parental rights hearing, the court should consider three things. First, the court shall
determine whether all necessary parties are present and identify all persons participating in the
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hearing. Next, the court shall determine whether the notice requirements have been complied with
and, if not, determine whether the affected parties intelligently waived compliance with the notice
requirements. Lastly, the court shall explain to the parent the purpose of the hearing, the standard
of proof required for terminating parental rights, and the consequences if the parent’s parental
rights are terminated.
Petitioner avers that it is noteworthy that the foregoing three critical points must be
addressed before anything happens at all in the hearing. The law says “[a]t the beginning of the
involuntary termination of parental rights hearing,” not in the middle, or at some point after the
first witness is called, but“[a]t the beginning.” Further, “[a] basic tenet of statutory construction
constrains us to conclude that, unlike the discretionary nature of ‘may,’ the word ‘shall’ is a
mandatory directive.” (Emphasis added). Ivy v. Harrington, 644 So. 2d 1218, 1221 (Miss. 1994).
Courts must therefore apply the word “shall” faithfully, in accord with “our constitutional mandate
to faithfully apply the provisions of constitutionally enacted legislation.” (Emphasis added). Univ.
of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (¶23) (Miss. 2006).
In the instant action, the Special Review Order entered on March 3, 2020, stated that the
matter had come up for “Special Review Hearing” with Marshall County CPS in attendance. The
Court then went ahead to issue its order that terminated Petitioner’s parental rights.
Petitioner asserts that in issuing the said order, the Trial Court grossly departed from the
law. First, the Court failed to confirm the presence of all parties as required under the law. Next,
the Court failed to determine whether all notice requirements have been complied with. Lastly, the
Court failed to explain to the Petitioner the standard of proof required for terminating his parental
rights.
It follows; the Trial Court’s decision blatantly violated MS Code § 93-15-121(a) (2016) et
seq. The Special Review Order should be dismissed in that regard.
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II. The Court’s decision to terminate Petitioner’s parental rights violated the Petitioner’s
liberty and interest in the care, custody, and control of the children
“In 2016, the Mississippi Legislature enacted the Mississippi Termination of Parental
Rights Law.” Miss. Dep’t of Child Prot. Servs. v. Bynum, 305 So. 3d 1158, 1161 (¶4) (Miss.2020).
The law directly addresses one of the most important rights in our society. “The liberty. . . interest
of parents in the care, custody, and control of their children . . . is perhaps the oldest of the
fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65
(2000).
Courts fail to protect the best interest of the minor children by failing to comply with MS
Code § 43-21-601(1) (2019), which provides that: “[i]f the child has been adjudicated a delinquent
child, a child in need of supervision, a neglected child or an abused child, the youth court shall
immediately set a time and place for a disposition hearing which shall be separate, distinct and
subsequent to the adjudicatory hearing”. Further, MS Code § 43-21-601(2) (2019) provides in
pertinent part that, “if the child has been taken into custody, a disposition hearing shall be held
within fourteen (14) days after the adjudicatory hearing unless good cause be shown for
postponement.
In re C.R., 604 So. 2d 1079, 1084 (Miss.1992), the Supreme Court remanded that case to
the lower court “for failure to follow [MS Code § 43-21-601] so that a separate and distinct
disposition hearing be had as required,”
In the instant action, the decision to deny Petitioner his parental rights failed to recognize
the Petitioner’s liberty and interest in the care, custody, and control of the children. First, the
Petitioner has at no time committed any abusive act on the children. An investigation done by the
Mississippi Department of Child Protection Services (hereinafter “MDCPS) revealed that the
assessment of allegations of abuse and neglect of Emanuel and Kyle are unsubstantiated. MDCPS
10
further stated that it did not find any evidence of abuse on the children.
Further, in violation of MS Code § 43-21-601(1) (2019), the Court did not mention any
separate and distinct disposition hearing to hear the termination of Petitioner’s parental rights. The
foregoing show the extent in which the Trial Court’s blatant disregard of the applicable law, is a
violation of Petitioner’s liberty and interest in the care, custody, and control of the children.
CONCLUSION
In light of the foregoing, this Honorable Court should grant a mandamus relief, and enter a
preliminary injunction barring the enforcement of the Trial Court’s Special Review Order that was
issued on March 3, 2020. Lastly, the Petitioner requests this Court to discharge the Marshall
County Child Protective Services (CPS) of its duties and grant the Petitioner sole custody of the
children.
Respectively submitted this day of __________ 2022:
____________________________
Matthew Johnson
250 S. Chesterman Street, Apt. 3C
Holly Springs, MS 38635
Petitioner, pro se
11
CERTIFICATE OF SERVICE
I, MATTHEW JOHNSON, do hereby affirm that I placed a copy of the foregoing
document in the United States Postal Service for mailing to the entities named below on this
day of , 2022.
To:
Shirly C. Byers, Esq.
Prosecutor
Marshall County Youth Court
P.O. Box 5008
Holly Springs, MS 38635
(662) 252-6530
Mississippi Department of Child Protection Services
Marshall County CPS
230 East College Street
P.O. Box 218
Holly Springs, MS 38635
(662) 252-3465
Mississippi Department of Child Protective Services
Terry Phillips
Regional Manager
P.O. Box 1980
Corinth, MS 38835
(662) 286-7738
Department of Child Protection Services
Attn: Mary Raymond
Child/Family Protection Specialist
Marshall County CPS
230 East College Street
P.O. Box 218
Holly Springs, MS 38635
(662) 216-3183
____________________________
Matthew Johnson
250 S. Chesterman Street, Apt. 3C
Holly Springs, MS 38635
Petitioner, pro se
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