CARLTON, J., for the Court:
¶ 1. Jimmy Ray Chism Jr. (Jim) appeals the Union County Chancery Court's judgment terminating his parental rights pursuant to Mississippi Code Annotated section 93-15-103 (Rev.2004). The chancellor terminated Jim's parental rights upon finding Jim unfit for any form of custody or visitation with his son, Johnny,
¶ 2. On September 3, 2012, the appellant, Abby Gale Morris Chism Bright (Abby) filed a motion to strike portions of Jim's brief, alleging that Jim included facts that occurred after the conclusion of the hearing and thus failed to constitute part of the record on appeal. Jim filed a response, asserting that he wanted this Court to take judicial notice of these particular facts. The facts at issue include (1) Jim's statement in his brief that at the time of the appeal, he was participating in a drug-rehabilitation program and had been released from jail and (2) information taken from redacted portions of the expert witness's report. We note that Jim acknowledged in his brief that he quoted from a redacted portion of the expert witness's report. We thus grant Abby's motion to strike portions of Jim's brief referring to facts not established in the record below. Therefore, none of the facts at issue in the motion to strike were considered upon review or included in this opinion.
¶ 3. The record shows that Abby and Jim married on October 17, 2003. Their marriage produced one child, Johnny, born on March 17, 2004. Jim and Abby divorced on March 10, 2008. Under the divorce decree, Jim and Abby shared joint legal custody of Johnny, with Abby receiving primary physical custody and Jim receiving liberal visitation.
¶ 4. On July 25, 2008, Abby filed an emergency petition for modification of custody. The chancellor entered an order modifying visitation, requiring Jim's mother, Terri Chism, to supervise Jim's visitation with Johnny. Then, on September 14, 2009, Jim filed a complaint for contempt, seeking to restore unsupervised visitation with Johnny and to require Abby to execute a quitclaim deed on the marital home the chancellor awarded him as part of the initial divorce decree.
¶ 5. On October 14, 2009, Abby filed a counter-complaint seeking termination of Jim's parental rights, alleging a substantial erosion of the relationship between Johnny and Jim caused by Jim's serious neglect of and lack of concern for Johnny. Abby
¶ 6. A trial was held on October 18, 2010, continued on July 12-13, 2011, and concluded on July 14, 2011. The chancellor heard testimony from Jim; Abby; Abby's husband, Charles; Jim's father, Dr. Jimmy Chism Sr.; Jim's mother, Terri; Jim's sister, Katie Chism; Jim's girlfriend, Reagan Graham; the guardian ad litem (GAL); and Dr. Samuel Fleming III, a licensed clinical neuropsychologist, who provided the sole expert testimony.
¶ 7. Jim and Abby testified regarding a specific incident that occurred on July 5, 2008. The night before that date, Jim and Abby separately attended a party, where they both consumed alcohol. Jim admitted drinking to the point of intoxication, but Abby denied being intoxicated.
¶ 8. Abby testified that in August 2008 she began dating Charles, who was twenty years old at the time. The GAL provided testimony that Abby purposely interfered with Jim's visitation with Johnny.
¶ 9. Jim testified that as a result of not being able to see Johnny, he became depressed. Jim tested positive for marijuana use in May 2010, and he admitted that he used cocaine and marijuana in February, March, and April 2010. In May 2010, Jim became intoxicated and broke into his neighbor's house. Afterwards, Jim checked into a treatment facility. Upon release in October 2010, Jim claims he kept in touch with his sponsor, began attending church, and met his current girlfriend, Reagan. Jim admitted that on November 19, 2010, he left Reagan's home and began drinking and ingested numerous Xanax pills. That night, Jim broke into the home of his parents' neighbors. Another neighbor discovered Jim, who was unresponsive, and the neighbor called 911. Jim was arrested and remained incarcerated through the last day of trial. Jim admitted to numerous criminal charges, many of which were filed against him prior to his marriage to Abby and prior to the trial. Jim also admitted to tampering with test samples he provided for a drug screen.
¶ 10. While Jim was incarcerated, Dr. Fleming, a licensed neuropsychologist, met with Jim and conducted an interview and an assessment using the Minnesota Multiphasic Personality Inventory, and ultimately diagnosed Jim with bipolar disorder related to Jim's drug and alcohol use. In his report, which was admitted into evidence,
¶ 11. Abby testified that she believed her new husband, Charles, would serve as a steady and better father to Johnny than Jim. Abby stated that she felt it was unhealthy for Johnny that Jim kept "popping in and out of rehab" and "in and out of jail." Abby admitted that no erosion of the relationship between Jim and Johnny had occurred, and testified that even if the chancellor terminated Jim's parental rights, she would have no problem with Jim visiting Johnny in the presence of Jim's parents, as long as Jim remained sober for six months.
¶ 12. The GAL ultimately recommended termination of Jim's parental rights based upon his understanding that termination was proper if it was impossible for Jim to exercise anything more than supervised visitation. The GAL explained that his interpretation of the statutory phrase "minimally acceptable care" was unsupervised visitation.
¶ 13. On September 8, 2011, the chancellor entered an opinion and judgment terminating Jim's parental rights and awarding grandparent visitation to Jim's parents.
¶ 14. Jim now appeals, asserting the following assignments of error, which we quote from Jim's appellate brief:
For the purposes of clarity, we will combine these issues in our discussion.
¶ 15. "Appellate review in a case to terminate parental rights is limited to reviewing the chancellor's findings under the manifest error/substantial credible evidence test." A.C.W. v. J.C.W., 957 So.2d 1042, 1044 (¶ 10) (Miss.Ct.App.2007) (citing S.N.C. v. J.R.D., 755 So.2d 1077, 1081 (¶ 11) (Miss.2000)). "On appeal, the court will ask whether there was `credible proof sufficient for the trier of fact to find abandonment by a parent based on clear and convincing evidence.'" Id. However, we review questions of law under a de novo standard. Id.
¶ 16. Jim argues that the chancellor erred in terminating his parental rights. Specifically, he asserts that Abby failed to provide clear and convincing evidence showing that he exhibited ongoing behavior that would make it impossible to return Johnny to Jim's care and custody. Jim also argues that the chancellor's decision to terminate Jim's parental rights lacked support by substantial evidence.
¶ 17. Mississippi Code Annotated section 93-15-103(3) lists various grounds for involuntary termination of parental rights. This statute clarifies that any one factor listed can justify the termination of parental rights; the party seeking termination of parental rights must prove "at least one of the grounds enumerated" by clear and convincing evidence. S.R.B.R. v. Harrison Cnty. Dep't of Human Servs., 798 So.2d 437, 443 (¶ 24) (Miss.2001); Miss.Code Ann. § 93-15-103(3); Miss. Code Ann. § 93-15-103(3). Even where the ground for termination is proven by clear and convincing evidence, the chancellor must still consider whether "termination is in the best interests of the child." S.R.B.R., 798 So.2d at 443 (¶ 24). A chancellor's finding that "the best interest of the [child] favors termination" must be supported by "substantial evidence." J.C.N.F. v. Stone Cnty. Dep't of Human Servs., 996 So.2d 762, 767 (¶ 17) (Miss. 2008).
¶ 18. In the present case, the chancellor cited section 93-15-103(3)(e)(i) as the basis for his decision to terminate Jim's parental rights. Section 93-15-103(3)(e)(i) allows for the termination of parental rights if:
¶ 19. The chancellor stated that "[a] review of Jim's history shows a troubling pattern of substance abuse increasing in
¶ 20. The chancellor concluded:
¶ 21. The supreme court has established that "[an appellate court] will affirm a chancellor's findings of fact if there is substantial evidence to support them[.]" J.C.N.F., 996 So.2d at 765 (¶ 10) (citation omitted). "This standard of review is highly deferential to the chancellor, who has the opportunity to hear all the testimony and observe the demeanor of all witnesses firsthand." Id. at 766 (¶ 10),
¶ 22. In turning to examine the record before us, we again acknowledge that the chancellor heard testimony from Jim; Abby; Abby's husband, Charles; Jim's father, Dr. Chism; Jim's mother, Terri; Jim's sister, Katie; Jim's girlfriend, Reagan; Jonathan Martin, the GAL; and Dr. Fleming, a licensed clinical neuropsychologist.
¶ 23. During the hearing, Jim admitted to consuming alcohol frequently during the period September 2008 and on July 15, 2009, and he acknowledged that he has suffered from an alcohol addiction since 2005. Jim testified that he attempted to enlist in the United States Army, but the Army rejected him because of an arrest for driving under the influence. Jim also admitted to several criminal charges, but he testified that Johnny was not present for any encounter with law enforcement other than on July 5, 2008. Jim testified that he sought alcohol treatment in July 2009, May 2010, and June 2010.
¶ 24. However, Jim admitted to testing positive for marijuana after a urine test in May 2010. Jim also testified that he used cocaine and marijuana in February, March, and April 2010, during the course of the present litigation. He further admitted to using drugs and alcohol again in November 2010, and he acknowledged the November 19, 2010 incident where he broke into his next-door neighbor's home, where the neighbors later found him unresponsive. Jim was arrested as a result of the incident, and remained incarcerated during the hearing. Jim testified that Dr. Fleming recently diagnosed him as bipolar, and Jim stated that with proper treatment, he could control himself.
¶ 25. In his order, the chancellor acknowledged Jim's testimony that he loves Johnny but that he struggles to stay sober. The chancellor also noted Dr. Chism's testimony that Johnny and Jim "worship" one another, as well as testimony from Jim's sister, mother, and girlfriend expressing their belief that Jim would remain sober and that Jim posed no threat to Johnny.
¶ 26. The chancellor's order also reflects that Abby testified that although she frequently drank alcohol to the point of intoxication during her marriage to Jim and took Xanax and Valium during that time, she has used no illegal drugs since her divorce from Jim. The chancellor noted
¶ 27. The chancellor also heard testimony from Dr. Fleming, whom the chancellor described in his order as "a licensed neuropsychologist whose practice includes patients in need of substance abuse treatment." Dr. Fleming opined that Jim possessed no alcohol addiction because he has never suffered withdrawal symptoms. However, as discussed previously, Dr. Fleming met with Jim and performed tests during April and May 2011, after which he diagnosed Jim as bipolar, primarily depressive rather than manic. The chancellor noted that "chronic chemical abuse" was the possible primary cause of Jim's bipolar disorder. Dr. Fleming testified that Jim's parents likely enabled Jim's condition. Dr. Fleming opined, and the chancellor's order reflects, that if Jim followed his treatment plan, "there is no reason to think that Jim could not completely change."
¶ 28. The chancellor's order reflects that the GAL
¶ 29. The GAL testified that he did not believe it was in Johnny's best interest to have a father figure who was absent for periods of time, and he opined that Jim had failed to make every available effort to see Johnny during the period between July 4, 2008 and October 14, 2009 (the date Abby filed the complaint seeking termination of Jim's parental rights). The GAL noted that Jim "has had an inability to secure and maintain meaningful employment throughout his adult life," and that as a result, "his parents have paid his court-ordered child support on his behalf." The GAL, citing section 93-15-103(3), opined that the record contains "more than clear and convincing evidence" to show that Jim "has a diagnosable condition of alcohol and drug addiction, unlikely to change within a reasonable time, and that condition makes him unable to assume minimal[ly] acceptable care of [Johnny]." The GAL testified that he believed "the statutory requirements have been overwhelmingly met as to grounds for termination," and that Johnny's best interest required "termination be ordered." The GAL clarified that his interpretation of the phrase "minimal acceptable care" in section 93-15-103(3) was that it meant unsupervised visitation.
¶ 30. The chancellor also acknowledged the August 18, 2008 order modifying visitation, imposed as a result of the July 5, 2008 incident where Jim drove to McDonald's while intoxicated, with Johnny in the car, and then fell asleep at the drive-thru. The police arrived and arrested Jim in front of Johnny. That order provided that Terri would strictly supervise any visitation
¶ 31. After hearing the testimony of the parties, witnesses, and GAL, the chancellor ultimately found that pursuant to section 93-15-103(3):
The chancellor then ordered the termination of Jim's parental rights.
¶ 32. After our review of the record, we find that the testimony of the parties and witnesses, as well as the GAL's report and recommendation, supports the chancellor's finding that Abby proved "at least one of the grounds enumerated" in section 93-15-103(3) by clear and convincing evidence. S.R.B.R., 798 So.2d at 443 (¶ 24). The chancellor further found the termination of Jim's parental rights to be in Johnny's best interest "so that a permanent and stable father may assume the role." See id. Upon our review, and acknowledging our standard of review, we accordingly find "credible proof" sufficient to support the chancellor's decision finding that Abby proved one of the grounds enumerated in section 93-15-103(3) for termination of parental rights by clear and convincing evidence. We therefore find no abuse of discretion
¶ 33.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., AND JAMES, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., NOT PARTICIPATING.