Petition for Writ of Certiorari — M. L. B. v. S. L. J. (No. 95-853)

Supreme Court, US. ;

FILED {|

Q5° 853 Nov 2 9/1985

ee eee

In The

Supreme Court of the United States

October Term, 1995

+

M.L.B.,

Petitioner,

vs.

S.L.J., INDIVIDUALLY, AND AS NEXT FRIEND

OF THE MINOR CHILDREN, S.L.J. AND M.L.J.,

AND HIS WIFE, J.PJ.,

Respevidents.

+

Petition For Writ Of Certiorari

To The Supreme Court Of Mississippi

S

PETITION FOR WRIT OF CERTIORARI

S

*Rosert B. McDurr

771 North Congress Street

Jackson, Mississippi 39202

(601) 969-0802

DaNNY LAMPLEY

ACLU/M Cooperating Attorney

Post Office Box 7245

Tupelo, Mississippi 38802

(601) 840-4006

Marina Hsiex

Boalt Hall School of Law

University of California

Berkeley, California 94720

(510) 642-4474

Counsel for Petitioner

*Counsel of Record

:

: i

QUESTION PRESENTED

In a State that provides appeals as a matter of right

from adverse lower court decisions terminating parental

rights, may the State, consistent with the due process and

equal protection clauses of the Fourteenth Amendment,

condition those appeals upon a parent’s ability to pay

appeal fees in excess of two thousand dollars?

ii

PARTIES

Due to certain provisions of Mississippi law regard-

ing appeals involving minors, initials were used to

denote the parties in the appeal to the Supreme Court of

Mississippi. However, the parties’ full names are con-

tained in the pleadings of the Chancery Court of Benton

County, Mississippi, see Pet. App. 8.

Defendant/Counter-Plaintiff/Appellant: M.L.B.

Plaintiffs /Counter-Defendants/ Appellees: S.L.J.,

individually and as next friend of his minor children,

S.L.J. and M.L.J., and his wife, J.P.J.

The Defendant/Counter-Plaintiff/Appellant is the

Petitioner here.

TABLE OF CONTENTS

Page

EE 1

EERE a incccccbccodcecvcccccececcccs 2

STATUTES AND CONSTITUTIONAL PROVISIONS

EEE 2

EE I so ko bcccccccccccccces: 3

REASONS FOR GRANTING THE WRIT ........... 8

THE DECISION OF THE SUPREME COURT

OF MISSISSIPPI RAISES AN IMPORTANT

QUESTION OF FEDERAL CONSTITUTIONAL

LAW, AND CONFLICTS WITH THE REASON-

ING OF THIS COURT’S DECISIONS IN

GRIFFIN v. ILLINOIS, 351 U.S. 12 (1956), AND

no71) v. CONNECTICUT, 401 U.S. 371

THE DECISION OF THE SUPREME COURT

OF MISSISSIPPI CONFLICTS WITH DECI-

SIONS OF THE SUPREME COURTS OF OHIO,

MICHIGAN, ARIZONA, VERMONT, AND

FLORIDA, AND OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIR-

iv

TABLE OF AUTHORITIES

Page

Cases

Addington v. Texas, 441 U.S. 418 (1979) .......--+-++- 21

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71

CBOE. o icc ccccceccnceccncccsccsseecsesndeseohsnsos 9

Boddie v. Connecticut, 401 U.S. 371 (1971)........ passim

Britt v. North Carolina, 404 U.S. 226 (1971)............ 5

Griffin v. Illinois, 351 U.S. 12 (1956) .........+.++- passim

Grove v. State, 897 P.2d 1252 (Wash. 1995)........... 22

In Re L.G., 603 A.2d 381 (Vermont 1992) ............ 20

In the Matter of Appeal in Pima County Juvenile

Action No. ]-46735, 540 P.2d 642 (Ariz. 1975) ...... 20

Lassiter v. Department of Social Services, 452 U.S. 18

CRGGED . ccccccccccccccccssceescesosste 7, 12, 13, 18, 19

Lecates v. Justice of the Peace Court No. 4, 637 F.2d

GOB Gia Cie. BOGED. 20. cccccccccccccccsecccsccdeecs 21

Life & Cas. Insurance Co. v. Walters, 200 So. 732

Ga. BOGED cc vcccccccccccccctsecnnccsudecuuccess 1, 6

Lindsey v. Normet, 405 U.S. 56 (1972) ..... 2.660005. 9, 15

Long v. District Court of lowa, 385 U.S. 192 (1966) .... 16

Mayer v. City of Chicago, 404 U.S. 189 (1971)..5, 11, 12, 16

Moreno v. State, 637 So.2d 200 (Miss. 1994)........... 1

Murray v. Giaratano, 481 U.S. 551 (1987)............. 16

Nelson v. Bank of Mississippi, 498 So.2d 365 (Miss.

Bc ncccccceuscvcésunsndsckbenentesebuneceesese 1, 6

Ortwein v. Schwab, 410 U.S. 656 (1973) .............. 17

Vv

TABLE OF AUTHORITIES - Continued

Page

Petit v. Holifield, 443 So.2d 874 (Miss. 1984) ......... 14

nich. 1976) ae or ee eee 0

Rinaldi v. Yeager, 384 U.S. 305 (1966) ................ 16

Ross v. Moffitt, 417 U.S. 600 (1974)....... 15, 16, 17, 18

Santosky v. Kramer, 455 U.S. 745 (1982).... 7, 12, 13, 21

Scott v. Illinois, 440 U.S. 367 (1979).............0.... 16

Shuman v. State, 358 So.2d 1333 (Fla. 1978).......... 20

State ex rel. Heller v. Miller, 399 N.E.2d 66 (Ohio

GTS ne Ra Le Seiten 2 ch ee ea 20

United States v. Kras, 409 U.S. 434 (1973)............ 17

Vance v. Lincoln County DPW, 582 So.2d 414 (Miss.

PC SAh dsb haeueokhns Cescasbe nebeeuscccestdececss 13

Webb's Fabulous Pharmacies v. Beckwith, 449 U.S.

Cc ndhbs scocccndsucdcebccccsaccveetsecceds 7

CONSTITUTIONAL Provisions, STATUTES AND RuLes

U.S. Const., Amendment XIV ................... passim

Oe ee eee 2

fe ee 3

Sy ee Ga, TP MIs cc ccccccccesccecoccccess 4

Riles. Code Amm., § GO-ES-TGD . 2... ccccccccccccccccces 3

Riise. Code Amm., § GO-ES- TED... nc cccccccccccccces 3, 13

Miss. Rule of App. Proc., Rule 10.................... 4

vi

TABLE OF AUTHORITIES - Continued

Page

Miss. Rule of App. Proc., Rule 11.....-..--.+++0++: 4,9

Miss. Rule of App. Proc., Rule 16.....-..--.++ee+++s: 4

Miss. Rule of App. Proc., Rule 17........-..+++0+50s: 4

OTHER

Luther T. Munford, Mississippi Appellate Practice, ‘

§ 7.6 (1995)

PETITION FOR WRIT OF CERTIORARI

The petitioner, M.L.B., whose parental rights to her chil-

dren were terminated by the Chancery Court of Benton

County, Mississippi, respectfully requests that a writ of cer-

tiorari issue to the Supreme Court of Mississippi, which

refused to permit her appeal from the adverse termination

decision because of her financial inability to pay to the Court

appeal fees, including record preparation fees, in excess of

two thousand dollars. This was done pursuant to the Missis-

sippi Supreme Court's uniform practice of automatically

prohibiting any sort of in forma pauperis appeal in a civil

case, regardless of the subject matter of the case or the

interests that are implicated. See, Moreno v. State, 637 So.2d

200 (Miss. 1994) (in forma pauperis appeals are not permit-

ted in civil cases); Nelson v. Bank of Mississippi, 498 So.2d 365

(Miss. 1986) (same); Life & Cas. Ins. Co. v. Walters, 200 So. 732

(Miss. 1941) (same).

¢

OPINIONS BELOW

The August 31, 1995 order of the Supreme Court of

Mississippi dismissing the petitioner’s appeal is unre-

ported and is reproduced in the appendix to this petition,

p. 1. The related August 18, 1995, July 10, 1995, and June

5, 1995 orders of the Supreme Court of Mississippi are

unreported and are reproduced in Pet. App. 3, 4, and 6,

respectively. The December 14, 1994 order of the Chan-

cery Court of Benton County terminating the parental

rights of petitioner is unreported and is reproduced at

Pet. App. 8.

JURISDICTION

The judgment of the Supreme Court of Mississippi

dismissing the petitioner’s appeal was issued on August

31, 1995. Pet. App. 1. The mandate of the Supreme Court

of Mississippi, which is dated September 21, 1995, con-

firms that the date of the dismissal was August 31, 1995.

Pet. App. 2. This Court's jurisdiction is invoked pursuant

to 28 U.S.C. § 1257. Because this petition involves a

challenge to the uniform practice of the Supreme Court of

Mississippi that preciudes in forma pauperis civil appeals

in all cases, this petition is being served on the Attorney

General of Mississippi. See Rule 29.4(c) of the Rules of

this Court.

e

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves the Fourteenth Amendment to the

United States Constitution, which reads in relevant part

as follows:

Amendment XIV:

.... No state shall .. . deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

°

STATEMENT OF THE CASE

Petitioner M.L.B. and respondent S.L.J. had been

married as wife and husband, but were divorced on June

9, 1992, with their two children remaining in the custody

of S.L.J., their father. Less than three months later, on

September 4, 1992, S.L.J. remarried, this time to respon-

dent J.P.J. Just over one year later, on November 15, 1993,

respondents S.L.J. and J.P.J. filed this case in the Chancery

Court of Benton County, Mississippi, seeking to terminate

the parental rights of petitioner M.L.B., who is the natural

mother of the children, and to have J.P.J. take her place by

adopting the children. M.L.B. responded with a counter-

claim seeking primary custody of the children and seek-

ing to have S.L.J. held in contempt of court for his refusal

to permit reasonable visitation.

Under Mississippi law, a person's parental rights can-

not be terminated absent clear and convincing evidence

that the parent either abandoned or abused the child or is

so unfit as to warrant termination. Miss. Code Ann.,

§§ 93-15-103, 93-15-109. Despite this high burden of

proof, the Chancery Court, after a contested trial on the

merits, issued an order effective December 12, 1994,

entered nunc pro tunc on December 14, 1994, terminating

the parental rights of petitioner M.L.B. and in her stead

allowing J.P.J. to adopt the children. Pet. App. 8. In the

order, the Chancellor cited no specific evidence to sup-

port the decision, but merely issued a conclusory state-

ment parroting the statutory language. Pet. App. 9-10.

In Mississippi, an appeal of right can be taken from

all lower court judgments, civil as well as criminal. The

appeal is to be filed initially with the state Supreme

Court, which determines after briefing whether to retain

the case for decision or to send it to the intermediate

Mississippi Court of Appeals. Rules 16, 17, M.R.A.P.

Petitioner M.L.B. filed a timely notice of appeal to the

Mississippi Supreme Court on January 11, 1995. Pet. App.

13. Although she paid the $100 filing fee for the appeal,

she was unable to obtain the funding to pay the remain-

ing costs required for the appeal to proceed. The Clerk of

the Chancery Court estimated the cost of preparing and

transmitting the record to be $2,352.36, which included

$1,900.00 for the transcript (950 pages at $2.00 per page),

$438.00 for the other papers in the record (219 pages at

$2.00 per page), $4.36 for binders, and $10.00 for mailing.

Pet. App. 15. Under Mississippi law, the advance pay-

ment of these fees is a prerequisite to proceeding with an

appeal. Rules 10(b)(1)-(2), 11(b)(1), M.R.A.P.!

1 Rule 11(b)(1), M R.A.P., requires the petitioner to pay in

advance for the transcript as well as other necessary portions of

the record. The per page costs of the transcript and the papers

from the record are set by statute. Miss. Code Ann. §§ 25-7-1,

25-7-13(6). Rule 10(b)(2), M.R.A.P., requires that a transcript be

prepared if the appellant “intends to urge on appeal that a

finding or conclusion is unsupported by the evidence or is

contrary to the evidence.” In this case, the primary error that the

petitioner intended to urge on appeal was that the Chancery

Court’s decision terminating her parental rights was unsup-

ported by, and contrary to, the evidence presented. This is deno-

ted in the statement of issues for appeal, which was filed in the

Chancery Court pursuant to Misssippi practice. Rule 10(c),

M.R.A.P., provides a procedure for preparing the record “[i]f no

stenographic report or transcript . . . is available,” but this

procedure applies only if the court reporter’s notes are lost or

stolen or if the court reporter failed to transcribe an important

portion of any trial or hearing. Luther T. Munford, Mississippi

On July 10, 1995, the Mississippi Supreme Court

issued an order requiring the appeliant, within fourteen

days, to comply with certain prerequisites before the

appeal could proceed. Pet. App. 4. The appellant met all

of these requirements, except that of paying the $2,352.36

in appeal costs. Instead, on July 24, 1995 - fourteen days

after the Court's July 10 order — she filed in the Chancery

Court of Benton County a motion for leave to appeal in

forma pauperis. Pet. App. 17. Attached to that motion

was an affidavit of indigency showing that her limited

financial means rendered her unable to pay the appeal

costs. On July 27, 1995, she filed in the Supreme Court of

Mississippi a motion to suspend rules, for leave to appeal

in forma pauperis, and to brief the issue of in forma

pauperis appeals. Pet. App. 19.

Appellate Practice, § 7.6 (1995). Rule 10(d), M.R.A.P., permits

parties to an appeal to forego the transcript if they can agree on

a written “statement of the case . . . setting forth only so many of

the facts averred and proved or sought to be proved as are

essential to a decision of the issues presented,” but that was

simply not an option in the present case, which involved a

protracted and hotly contested evidentiary battle. As this Court

noted in the context of a criminal case, “[a] defendant who

claims the right to a free transcript does not, under our cases,

bear the burden of proving inadequate such alternatives as may

be suggested by the State or conjured up by a court in hind-

sight.” Britt v. North Carolina, 404 U.S. 226, 230 (1971). See also,

Mayer v. City of Chicago, 404 U.S. 189, 190, 195, 198 (1971) (where

a criminal defendant appealed on sufficiency of evidence

grounds, he “ma([d]e out a colorable need for a complete tran-

script” and the burden was on his opponent to demonstrate that

an alternative would suffice for an effective appeal).

These two motions raised the federal constitutional

issues that are now being presented to this Court. The

July 24 Chancery Court motion, which was attached to

and incorporated in the July 27 Mississippi Supreme

Court motion, noted that Mississippi Supreme Court

precedent prohibited in forma pauperis appeals in civil

cases. Pet. App. 17-18, citing, Nelson v. Bank of Mississippi,

498 So.2d 365 (Miss. 1986); Life & Cas. Ins. Co. v. Walters,

200 So. 732 (Miss. 1941). However, the motion contended

that the failure to permit the appeal because of the inabil-

ity to pay the appeal costs, coming in a case involving the

termination of the fundamental rights of a parent, would

violate both the state and federal constitutions. More

specifically, the motion stated:

[W]here the State’s judicial processes are

invoked to secure so severe an alteration of a

litigant’s fundamental rights — the termination

of the parental relationship with one’s natural

child — basic notions of fairness, justice, of equal

protection under the law, and of substantive and

procedural due process, protections guaranteed

by this State’s Constitution and the Constitution

of the United States, require that a person be

afforded the right of appellate review though

one is unable to pay the costs of such review in

advance.

Pet. App. 18.

The July 27 Supreme Court motion incorporated the

July 24 Chancery Court motion, and added that the termi-

nation of parental rights “implicates a fundamental inter-

est protected both by the Fourteenth Amendment to the

U.S. Constitution and Article 3, Section 14 of the Missis-

sippi Constitution.” Pet. App. 20. It further stated:

7

The denial because of the indigency of the

appellant of the right to review in a case involv-

ing such a . . . fundamental interest . . . appears

to be a violation of the requirement of due pro-

cess and a denial of equal protection under the

law. ...

Id., citing, Santosky v. Kramer, 455 U.S. 745, 758-759 (1982),

and Lassiter v. Department of Social Services, 452 U.S. 18, 27

(1981). Accordingly, the federal issues were properly

raised by these two motions in the Mississippi courts, one

of which was filed in the Chancery Court and both of

which were filed in the Mississippi Supreme Court. See,

Webb's Fabulous Pharmacies v. Beckwith, 449 U.S. 155, 159

n.5 (1980).

On August 18, 1995, the Supreme Court of Missis-

sippi issued an order denying the motion to suspend

rules, for leave to appeal in forma pauperis, and to brief

the issue of in forma pauperis appeals. The Court's sole

basis for denying the motion was the following:

The appellant claims he [sic] is unable to pay the

costs of appeal and that the Court should sus-

pend the rules and allow the appellant to pro-

ceed in forma pauperis. The motion asks

permission to brief the issue of in forma pau-

peris appeals. The right to proceed in forma

pauperis in civil cases exists only at the trial

level. Moreno v. State, 637 So.2d 200 (Miss. 1994).

See also Nelson v. Bank of Mississippi, 498 So.2d

365 (Miss. 1986); Life and Casualty Ins. Co. v.

Walters, 190 Miss. 761, 772-74, 200 So. 732,

733-34 (1941). The Court finds that the motion

should be denied.

Pet. App. 3. On August 31, 1995, the Supreme Court of

Mississippi ordered the appeal finally dismissed. Pet.

App. 1-2. This petition follows.”

e

REASONS FOR GRANTING THE WRIT

Section I of the remainder of this petition discusses

the importance of the federal question at issue here, as

well as the conflict between the decision of the Supreme

Court of Mississippi and the reasoning of at least two of

this Court’s prior decisions. Section II discusses the con-

flict between, on one hand, the decision of the Supreme

2 Throughout this litigation, the petitioner has been repre-

sented by pro bono counsel. Danny Lampley originally began

representing the petitioner when he was a staff attorney for

North Mississippi Rural Legal Services (NMRLS). Because of

the petitioner’s poverty, she was eligible for representation by

that organization. After Mr. Lampley left NMRLS for private

practice during the course of the Chancery Court proceedings,

he retained the case pro bono because NMRLS did not have a

sufficient number of attorneys for someone else to take over the

case. Although Mr. Lampley later asked NMRLS to pay the

appeal costs, and although Rule 1.8(e)(2) of the Mississippi

Rules of Professional Conduct permitted NMRLS to do so, it did

not because of constraints on its own budget. This is denoted in

the record, in Exhibit B to the modified motion for leave to

withdraw from representation, which was filed in the Missis-

sippi Supreme Court so that NMRLS could withdraw after hav-

ing determined that it was not in a position financially to carry

the appeal. The Mississippi Supreme Court permitted NMRLS

to withdraw from the case. Pet. App. 6. Because of the impor-

tance of the constitutional issue in this case, the American Civil

Liberties Union of Mississippi is paying for the expense of filing

this petition for certiorari with this Court.

ms

Court of Mississippi and, on the other, the decisions of

several other state supreme courts and at least one fed-

eral court of appeals. Before turning to those, however, it

is important to note that even though this case involves

private litigants, the Supreme Court of Mississippi's deci-

sion to dismiss the petitioner’s appea! for nonpayment of

the fees implicates state action and is therefore review-

able under the Fourteenth Amendmert. This is clear from

a number of cases in which this Court has reviewed state

appellate procedures under the Fourteenth Amendment

in cases between private litigants. See, e.g., Bankers Life &

Casualty Co. v. Crenshaw, 486 U.S. 71 (1988); Lindsey v.

Normet, 405 U.S. 56 (1972).

I. THE DECISION OF THE SUPREME COURT OF

MISSISSIPPI RAISES AN IMPORTANT QUES-

TION OF FEDERAL CONSTITUTIONAL LAW,

AND CONFLICTS WITH THE REASONING OF

THIS COURT’S DECISIONS IN GRIFFIN v. ILLI-

NOIS, 351 U.S. 12 (1956), AND BODDIE v. CON-

NECTICUT, 401 U.S. 371 (1971).

Under its precedent and practice, as explained in the

August 15, 1995 order in this case, the Mississippi

Supreme Court does not permit any sort of in forma

pauperis civil appeals. This is true no matter the impor-

tance of the interest involved. Payment for preparation of

the record and the transcript must be made in advance,

M.R.A.P. 11(b)(1), and sometimes runs into the thousands

of dollars, as in the present case. The Mississippi

Supreme Court's inflexible practice precludes any consid-

eration of whether a prospective appellant can afford to

pay the relevant fees. Moreover, it prevents consideration

10

not only of whether an appellant should be required to

pay any fees at all, but also consideration of partial

measures, such as whether an appellant should be

required to pay only a portion of the fees, or whether an

appellant should be required to pay all of the fees, but in

installments. While the Mississippi Supreme Court’s

practice may not raise constitutional problems in many

civil cases, it does here, where the fundamental rights of a

parent’s relationship to her children are at issue.

Over the years, this Court has issued a series of

decisions relating to the right of access to courts of those

who are not sufficiently well off financially to pay the

fees and costs normally charged by the court systems.

These decisions are at odds with the ruling of the

Supreme Court of Mississippi in the present case.

In Griffin v. Illinois, 351 U.S. 12 (1956), this Court

noted that a state is not required by the Constitution to

provide an appeal, but went on to hold that where a state

does so in criminal cases, it also must provide indigent

persons a transcript, or its equivalent, at state expense so

they can take advantage of the appeal option irrespective

of their financial poverty. This result, said the Court im

Griffin, is compelled by the due process and equal protec-

tion clauses of the Fourteenth Amendment. Id. at 18-20. In

its opinion, the Court stated:

There is no meaningful distinction between a

rule which would deny the poor the right to

defend themselves in a trial court and one

which effectively denies the poor an adequate

appellate review accorded to all who have

money enough to pay the costs in advance.

Id. at 18.

11

In cases after Griffin, this Court has invalidated a

number of state practices and statutes that deny indigent

criminal defendants access to effective appeals because of

their inability to pay for transcripts. Among these cases is

Mayer v. Chicago, 404 U.S. 189 (1971), which held that an

indigent had the right to provision of a transcript for

appeal in a case where he was faced not with imprison-

ment, but merely with a $500 total fine for two misde-

meanor offenses.

Fifteen years after Griffin, this Court's decision in

Boddie v. Connecticut, 401 U.S. 371 (1971), extended much

of the rationale of Griffin to civil cases involving funda-

mental rights. Boddie held that the due process clause

does not permit a sixty dollar court costs fee to be

imposed, as a condition for filing a civil court divorce

petition, upon those who cannot afford it. As Justice

Harlan’s opinion for the Court in Boddie explained: “In

Griffin it was the requirement of a transcript beyond the

means of the indigent that blocked access to the judicial

process.” 401 U.S. at 382. Connecticut's $60 divorce filing

fee does the same thing, said the Court in Boddie, adding

that “the rationale of Griffin covers this case.” 401 U.S. at

382. Whle Griffin was predicated both upon the due

process and equal protection clauses, Boddie relied speci-

fically upon the due process clause, holding that it is

violated by the application to indigents of a monetary fee

that prevents them from access to the courts in a matter

involving a fundamental interest such as marriage:

[G]iven the basic position of the marriage rela-

tionship in this society's hierarchy of values and

the concomitant state monopolization of the

means for legally dissolving this relationship,

12

due process does prohibit a state from denying,

solely because of inability to pay, access to its

courts to individuals who seek judicial dissolu-

tion of their marriages.

401 U.S. at 374. The Court in Buddie also explained that its

decision was premised on the fact that resort to the courts

was the only means by which people could seek lawful

dissolution of their marriages. Id. at 376-377.

The decision of the Supreme Court of Mississippi in

the present case conflicts with the rationales of Griffin

and Boddie. As in Griffin, the petitioner here was pre-

vented from taking an appeal of right —- an appeal that is

available to others — because she cannot afford the fees

for preparing the transcript and the record. Her interest -

the interest of a parent in her natural and lawful relation-

ship with her child — is one of the most important inter-

ests that can be adjudicated in a court of law. It is at least

equivalent to the marriage relationship in Boddie, may

well be as important as the interest in physical liberty

implicated by Griffin, and is far more important than the

monetary fine and misdemeanor conviction involved in

Mayer. This Court in Lassiter v. Department of Social Ser-

vices, 452 U.S. 18, 24 (1991), noted that the parent's inter-

est in resisting a termination of parental rights is a

“commanding” one, and this Court's decision in Santosky

v. Kramer, 455 U.S. 745, 753 (1982), described the interest

of “persons faced with forced dissolution of their paren-

tal rights” as a “fundamental liberty interest.” As Justice

Stevens has noted:

A woman’s misconduct may cause the State to

take formal steps to deprive her of her liberty.

The State may incarcerate her for a fixed term

13

and also may permanently deprive her of her

freedom to associate with her child... .

Although both deprivations are serious, often

the deprivation of parental rights will be the

more grievous of the two.

Lassiter v. Department of Social Services, 452 U.S. at 59

(Stevens, J., dissenting).

The present case also is like Boddie in the sense that -

just as the courts in Connecticut were the only means for

seeking a lawful divorce - a chancery court adjudication

is the only means by which a natural parents’ rights can

be terminated under Mississippi law, and an appeal is the

only means by which an aggrieved parent can challenge

such a termination. Absent such an appeal, a Mississippi

chancery court decision has the same effect as the trial

court decision in Santosky - the “decision terminating

parental rights is final and irrevocable.” 455 U.S. at 745

(emphasis in original).

Moreover, under Mississippi law, the appeal plays an

integral role in insuring that parental rights are not

wrongfully terminated. Consistent with this Court's rul-

ing in Santosky, Mississippi has, by statute, adopted the

clear and convincing standard of proof before any termi-

nation can be ordered, Miss. Code Ann. § 93-15-109. The

Mississippi Supreme Court has jealously guarded that

standard through detailed appellate review of the evi-

dence. In discussing the clear and convincing standard in

parental termination cases, the Court said: “This Court

has not been reluctant to reverse the lower court when

the required burden of proof has not been met.” Vance v.

Lincoln County DPW, 582 So.2d 414, 417 (Miss. 1991).

14

The Mississippi Supreme Court’s searching review

has been exemplified in a number of cases, including Petit

v. Holifield, 443 So.2d 874 (Miss. 1984), where the Court

discussed the proof regarding the natural father, who was

the defendant in that case:

[He] does . . . come close [to meeting the clear

and convincing standard] and is ‘teetering’ on

the brink. . . . [If] circumstances continue with-

out improvement over a substantial period of

time in the future [his parental rights should be

terminated]. . . . He is hardly an ideal parent.

Id. at 878-879. Despite the closeness of that case and the

parental deficiencies of the natural father, the Mississippi

Supreme Court in Petit reversed the Chancery Judge’s

finding of clear and convincing evidence, holding that the

proof - while close - did not meet the required standard.

These cases demonstrate that, in Mississippi, the

appeal from a termination of parental rights is not simply

a formality, but instead is a meaningful opportunity for a

parent to challenge the evidence and the lower court's

findings and, quite possibly, to regain the parental rela-

tionship with his or her child. This would be particularly

true in the present case, where the petitioner contested

the respondent's evidence and presented compelling evi-

dence of her own, and where the Chancery Court's termi-

nation order contained no discussion of the evidence and

no specific factual findings to support the termination.

Pet. App. 8. For someone like the petitioner, the appeal of

right provided by Mississippi law is likely her best and

last hope to retain her rights as a parent.

15

Returning to the discussion of Boddie, it is, of course,

true that Boddie did not involve an appeal. But its invoca-

tion of the Griffin rationale - which did involve an appeal

- demonstrates that the Fourteenth Amendment concerns

underlying both cases apply also to a situation such as

the present case, where a civil defendant facing depriva-

tion of the fundamental rights of a parent is precluded

from access to an appellate court that is open by right to

those who can afford it. Indeed, in Lindsey v. Normet,

which is a civil case, this Court specifically noted that

“[w]hen an appeal is afforded .. . it cannot be granted to

some litigants and capriciously or arbitrarily denied to

others without violating [the Fourteenth Amendment].”

405 U.S. at 77.

This is consistent with the opinion by then-Justice

Rehnquist for this Court in Ross v. Moffitt, 417 U.S. 600

(1974), which explained that the Griffin line of cases

involves the right of an indigent person to get his or her

foot in the appellate courthouse door. According to the

Court in Ross, those cases “stand for the proposition that

a State cannot arbitrarily cut off appeal rights for indi-

gents while leaving open avenues of appeal for more

affluent persons.” 417 U.S. at 607. While this Court's

opinion in Ross held that the Fourteenth Amendment

does not require the provision of counsel for a discretion-

ary second appeal within a state system or a petition for

certiorari to this Court, it specifically contrasted the basic

sort of access to appellate courts represented by Griffin

with the distinct line of right-to-counsel cases:

The fact that an appeal has been provided does

not automatically mean that a State then acts

16

unfairly by refusing to provide counsel to indi-

gent defendants at every stage of the way... .

Unfairness results only if indigents are singled

out by the State and denied meaningful access to

the appellate system because of their poverty.

Id. at 611 (first emphasis in original, second emphasis

added). Thus, added the Court in Ross:

[The Fourteenth Amendment] does require that

the state appellate system be “free of unrea-

soned distinctions,” Rinaldi v. Yeager, 384 U.S.

305, 310 (1966), and that indigents have an ade-

quate opportunity to present their claims fairly

within the adversary system.

Id. at 612.

Indigents clearly have a right to access to existing

appellate avenues even in situations where they do not

have a right to appointed counsel. Indeed, the right of

access to appellate courts through provision of a tran-

script to those who otherwise cannot afford it is far

broader than any right to counsel. Compare, Mayer v.

Chicago (transcript must be provided to indigent seeking

to appeal a misdemeanor conviction with no sentence of

imprisonment and only a $500 fine) with Scott v. Illinois,

440 U.S. 367 (1979) (no right to counsel for a misde-

meanor offense that does not lead to imprisonment), and

Long v. District Court of lowa, 385 U.S. 192 (1966) (tran-

script of habeas corpus hearing must be provided to

indigent seeking to appeal denial of habeas relief) with

Murray v. Giaratano, 481 U.S. 551 (1987) (no right to coun-

sel on state habeas corpus review, even is. death penalty

cases).

17

Because the decision of the Supreme Court of Missis-

sippi in the present case cuts off access to the appellate

courts for indigents, in a case involving the fundamental

rights of a parent, it conflicts with the reasoning of the

Griffin line of cases and of Boddie v. Connecticut.

Beyond that, even if the Mississippi Supreme Court's

decision were deemed not necessarily to conflict with

those cases, it nevertheless raises an important issue of

federal constitutional law that should be addressed by

this Court. While Griffin, Boddie, and the rationale

explained in Ross all bear on this issue, this Court has

never decided a case raising the precise question of

access to an appellate court in a civil matter involving a

fundamental right such as that implicated by a termina-

tion of parental rights.

Certainly, it did not do so in Ortwein v. Schwab, 410

U.S. 656 (1973), which upheld the imposition upon an

indigent of a $25 filing fee required to seek judicial

review of an administrative reduction in old-age assis-

tance, or in United States v. Kras, 409 U.S. 434 (1973),

which concluded that the Fourteenth Amendment per-

mits the application of a $50 bankruptcy filing fee to an

indigent. In both cases, the Court specifically noted that

the interests involved are not of the same constitutional

magnitude as the marriage interest implicated in Boddie.

Ortwein, 410 U.S. at 659; Kras, 409 U.S. at 445. Moreover,

Ortwein involved only a $25 filing fee, while Kras

involved a $50 filing fee, which could be paid in several

installments of $1.28 per week. 409 U.S. at 449. These

cases are a far cry from present case, which involved

fundamental parental rights that can be asserted on

18

appeal only by payment of fees of over $2,000, which

must be paid all at once and all in advance.

This Court did address, in Lassiter, what it called the

“commanding” interest that a parent has in his or her

parental rights. 452 U.S. at 27. In that case, the Court held

that due process does not require appointed counsel for

indigent parents in every case involving a potential ter-

mination of parental rights. However, said the Court, in

light of the importance of the interest, there will be some

parental termination cases in which due process will

require the appointment of counsel. Id. at 31-32. Accord-

ingly, said the Court, there must be in the state courts, at

the very least, a case-by-case decision as to “whether due

process calls for the appointment of counsel for indigent

parents in termination proceedings,” with the question

“to be answered in the first instance by the trial court,

subject, of course, to appellate review.” Id. at 32. Four

dissenting Justices contended that due process requires

the appointment of counsel in all such cases.

Lassiter’s holding does not by itself answer the ques-

tion of whether a transcript must be provided to indigent

appellants in all parental termination cases. As noted

previously in this petition, the right to access, through a

transcript on appeal when necessary, is far broader than

any right to counsel. As this Court explained in Ross v.

Moffitt, the poor are not permitted all of the advantages

in the court system possessed by those who are wealthier,

but the poor are constitutionally entitled at least to access

to the same courts that are open to the wealthy. In other

words, when fundamental rights are at stake, a poor

person is entitled to get his or her foot in the same

courthouse door that is open to those with more money,

19

even if he or she is not always able to do it with an

attorney.

Even in terms of the right to counsel, Lassiter held

that the interest affected by the potential termination of

parental rights is sufficiently important that state courts

must, under the due process clause, either provide coun-

sel to indigents in all cases or make a case-by-case deter-

mination as to whether the appointment of counsel is

necessary. Because of the importance of this interest, it

follows that due process, at the very least, requires states

to make a case-by-case determination of whether a free or

partially-funded transcript is necessary to insure that

indigent people have the opportunity to commence an

appeal that otherwise is available by right to those who

are wealthier.

Unfortunately, the Mississippi Supreme Court's long-

standing precedent and practice precludes even the possi-

bility of allowing an indigent to appeal without paying

the costs of preparing the transcript and record. By

applying that inflexible rule to the present case, that

Court has made it clear that even in cases involving

termination of fundamental rights, such as the fundamen-

tal rights of a parent, the Court will not permit the

appeals of poor people who cannot afford to pay for the

record and the transcript. Because the Mississippi

Supreme Court will not consider this even on a case-by-

case basis, its decision in the present case appears to

conflict with the principles in Lassiter.

Moreover, as stated previously, it conflicts with the

reasoning in Griffin and Boddie, and raises an important

20

federal constitutional issue that should be resolved by

this Court.

Il. THE DECISION OF THE SUPREME COURT OF

MISSISSIPPI CONFLICTS WITH DECISIONS OF

THE SUPREME COURTS OF OHIO, MICHIGAN,

ARIZONA, VERMONT, AND FLORIDA, AND OF

THE UNITED ST..TES COURT OF APPEALS FOR

THE THIRD CIRCUIT.

Contrary to the Supreme Court of Mississippi's deci-

sion in this case, the Supreme Courts of Ohio, Michigan,

and Arizona all have held that the due process and equal

protection clauses of the Fourteenth Amendment require

that indigent parents be furnished a transcript, without

the necessity of payment that otherwise would be neces-

- sary, in order to appeal adverse lower court decisions

terminating parental rights. State ex rel. Heller v. Miller,

399 N.E.2d 66 (Ohio 1980); Reist v. Bay County Circuit

Judge, 241 N.W.2d 55 (Mich. 1976); In the Mattcr of Appeal

in Pima County Juvenile Action No. J-46735, 540 P.2d 642

(Ariz. 1975).

Beyond that, decisions of the Supreme Courts of Ver-

mont and Florida have held that the due process and

equal protection clauses of the Fourteenth Amendment

require that indigent litigants be furnished a transcript so

they can appeal adverse lower court decisions ordering

that they be involuntarily committed to mental institu-

tions. In Re L.G., 603 A.2d 381 (Vermont 1992); Shuman v.

State, 358 So.2d 1333 (Fla. 1978). While these two cases do

not deal precisely with the issue of parental termination,

their reasoning is at odds with that of the Mississippi

Supreme Court, which has inflexibly refused to permit in

21

forma pauperis civil appeals regardless of the interest

involved. Moreover, this Court’s constitutional decisions

indicate that parental termination rulings, like involun-

tary civil commitments, implicate fundamental constitu-

tional interests that require protection under the due

process clause. See, Santosky v. Kramer, 455 U.S. at 754-756,

764, 768 (holding that due process requires a clear and

convincing standard of proof before terminating a per-

son’s parental rights, and citing Addington v. Texas, 455

U.S. 745, 754 (1979), which held that the same standard is

required for involuntary civil commitments). Given the

constitutional similarities between the two types of pro-

ceedings, the decisions of the Supreme Courts of Vermont

and Florida conflict with that of the Supreme Court of

Mississippi.

Also, the United States Court of Appeals for the

Third Circuit has held that the due process clause of the

Fourteenth Amendment mandates that indigent civil

defendants in Delaware be allowed to take advantage of

the option to appeal adverse justice of the peace judg-

ments to Superior Court, where a trial de novo is avail-

able, without meeting the state’s surety bond

requirement, which otherwise forces civil defendants to

post a bond equaling the amount of the judgment plus

costs. Lecates v. Justice of the Peace Court No. 4, 637 F.2d 898

(3rd Cir. 1980). Although Lecates did not involve the

fundamental matter of termination of parental rights, but

only involved a civil debt stemming from foreclosure of

an automobile, and although it dealt with a de novo

appeal from a justice of the peace court to a trial court of

record rather than an appeal from a trial to an appellate

22

court, its basic holding is that a state cannot erect finan-

cial barriers that prevent civil defendants from taking the

same appellate avenues available to others. While the

petitioners here do not seek such a broad ruling, instead

focusing on the constitutional interest surrounding the

specific nature of a termination of parental rights, it is

nevertheless clear that the Third Circuit’s decision

directly conflicts with the decision of the Supreme Court

of Mississippi in the present case.

In this connection, it is important to note that many

other states have required the provision of transcripts for

indigents in civil appeals of an important nature, but

have done so on grounds of state statutes, rules, or con-

stitutional provisions, rather than on federal constitu-

tional grounds. See, e.g., Grove v. State, 897 P.2d 1252, 1259

(Wash. 1995).

With respect to the federal constitutional issue, the

conflicts described in this section of the petition should

be resolved by this Court.

23

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment of the Supreme Court of

Mississippi.

Respectfully Submitted,

*Rosert B. McDurr

771 North Congress Street

Jackson, Mississippi 39202

(601) 969-0802

Danny LAMPLEY

ACLU/M Cooperating Attorney

Post Office Box 7245

Tupelo, Mississippi 38802

(601) 840-4006

Marina Hsiex

Boalt Hall School of Law

University of California

Berkeley, CA 94720

(510) 642-4474

Counsel for Petitioner

*Counsel of Record

App. 1

IN THE SUPREME COURT OF MISSISSIPPI

ORDER

(Filed Aug. 31, 1995)

The Clerk’s Dismissal of the following cases is hereby

approved:

1.

ERIC GRUBBS A/K/A “HEAVY” A/K/A

“BIG BOY” A/K/A ERIC BERNARD

GRUBBS

v.

STATE OF MISSISSIPPI

Case Number: 92-KA-01226

M. L. B.

v.

S. L. J.. INDIVIDUALLY, AND AS NEXT

FRIEND OF THE MINOR CHILDREN, S. L. J.

AND M. L. J., AND HIS WIFE, J. P. J.

Case Number: 95-TS-00052

ANTHONY WILLIAMS

Vv.

ROSE GIBSON

Case Number: 95-TS-00453

BRANDEN C. LIGHTFOOT

v.

S. W. PUCKETT, ET AL.

Case Number: 95-TS-00580

The costs in each case are assessed to the appellant.

SO ORDERED, this the 29th day of August, 1995.

/s/ Michael Sullivan

IVAN,

JUSTICE

FOR THE COURT

App. 2

[SEAL]

MANDATE

From The

SUPREME COURT OF MISSISSIPPI

To the Benton County Chancery Court - GREETINGS:

On 31st Day of August, 1995, in proceedings held in

the Courtroom, Carroll Gartin Justice Building, the City

of Jackson, Mississippi, the Supreme Court of Mississippi

entered a final judgment as follows:

Supreme Court Case #95-TS-00052-

Trial Court Case #93A006

M. L. B.

vs.

S. L. J., Individually, and as Next Friend of the Minor

Children, S. L. J. and M. L. J., and his wife, J. P. J.

Appeal dismissed according to M.R.A.P. 2. Costs are

assessed to the appellant. Order entered.

YOU ARE COMMANDED, that execution and fur-

ther proceedings as may be appropriate forthwith be had

consistent with this judgment and the Constitution and

Laws of the State of Mississippi.

Hawkins, Chief Justice of the

Supreme Court of Mississippi;

the signa

upreme Court Clerk

—ii—,-_

App. 3

IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-TS-00052

M.L.B. Appellant

v

S.L.J., INDIVIDUALLY,

AND AS NEXT FRIEND OF Appellees

THE MINOR CHILDREN,

S.L.J. AND M.L.J.,

AND HIS WIFE, J.P.J.

ORDER

(Filed Aug. 18, 1995)

This matter came before the Court on the Motion to

Suspend Rules, for Leave to Appeal In Forma Pauperis, and

to Brief Issue of In Forma Pauperis Appeals. The appellant

claims that he is unable to pay the costs of appeal and that

the Court should suspend the rules and allow the appellant

to proceed in forma pauperis. The motion asks permission to

brief the issue of in forma pauperis appeals. The right to

proceed in forma pauperis in civil cases exists only at the

trial level. Moreno v. State, 637 So. 2d 200 (Miss. 1994). See also

Nelson v. Bank of Mississippi, 498 So. 2d 365 (Miss. 1986); Life

and Casualty Ins. Co. v. Walters, 190 Miss. 761, 772-74, 200 So.

732, 733-34 (1941). This Court finds that the motion should

be denied.

IT IS THEREFORE ORDERED that the Motion to Sus-

pend Rules, For Leave to Appeal In Forma Pauperis, and to

Brief Issue of In Forma Pauperis be, and hereby is, denied.

SO ORDERED, this, the 15th day of August, 1995.

/s/ Michael Sullivan

FOR THE COURT

App. 4

IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-TS-00052

M.L.B. APPELLANT

v

S.L.J., INDIVIDUALLY,

AND AS NEXT FRIEND OF

THE MINOR CHILDREN, APPELLEES

S.L.J. AND M.LJ.,

AND HIS WIFE, J.P.J.

ORDER

(Filed July 10, 1995)

The docket in this cause shows that the Appellant has

substantially failed to prosecute this appeal as indicated

below:

1. Appellant has failed to pay the appeal costs to

lower court clerk.

2. Appellant has not filed the designation of record

and/or filed the Certificate of Compliance with the lower

court clerk.

The docket also shows that the Clerk did, by letter of

June 23, 1995, give Appellant written notice of the default.

THEREFORE, IT IS ORDERED:

That the Clerk shall notify the Appellant of this defi-

ciency by mailing to the appellant a copy of this Order.

The Appellant shall have fourteen (14) days from the date

of entry of this Order within which to correct the defi-

ciency, failing in which this appeal shall stand dismissed,

which shall be noted upon the record by the Clerk.

App. 5

No extensions of time shall be granted beyond this

period within which to cure any deficiency.

ORDERED, this the 10th day of July, 1995.

/s/ Michael Sullivan

R E URT

.

App. 6

IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-TS-00052

M.L.B. Appellant

Vv.

S.L.J., INDIVIDUALLY,

AND AS NEXT FRIEND OF Appellees

THE MINOR CHILDREN,

S.L.J. AND M.LJ.,

AND HIS WIFE, J.P.

ORDER

(Filed Jun. 5, 1995)

This matter came before the Court on the Motion for

Leave to Withdraw from Representation and the Mod-

ified Motion for Leave to Withdraw from Representation.

In the original motion, Danny Lampley and North Missis-

sippi Rural Legal Services, counsel of record for the

Appellant requested permission to withdraw as counsel

for the Appellant. In the modified motion, Danny

Lampley requests that he be allowed to continue repre-

senting the Appellant while allowing North Mississippi

Rural Legal Services to withdraw. Lampley also requests

thirty (30) days to allow the Appellant to get her finances

in order or to obtain new counsel.

This Court finds that North Mississippi Rural Legal

Services should be allowed to withdraw and that Danny

Lampley should continue to represent the Appellant.

Since the modified motion was filed on March 6, 1995,

and the case has been suspended pending a ruling on the

motion pursuant to M.R.A.P. 31(e), this Court finds that

App. 7

the request for thirty (30) days to obtain financing or new

counsel should be denied without prejudice.

IT IS THEREFORE ORDERED that North Missis-

sippi Rural Legal Services be allowed to withdraw as

counsel for the Appellant. Danny Lampley is to continue

to represent the Appellant.

IT IS FURTHER ORDERED that the request for

thirty (30) days to obtain financing or new counsel be,

and hereby is, denied without prejudice.

SO ORDERED, this, the 30 day of May, 1995.

/s/ Michael Sullivan

FOR THE COURT

App. 8

IN THE CHANCERY COURT OF

BENTON COUNTY, MISSISSIPPI

SAMMY LEE JAMES,

INDIVIDUALLY,

AND AS NEXT FRIEND OF THE MINOR

CHILDREN, SAMUEL LEE JAMES AND

MELISSA LEANN JAMES, AND HIS PLAINTIFF

WIFE JANET (PANNELL) JAMES

VS. CAUSE NO. 93-A-006

MELISSA LUMPKIN BROOKS DEFENDANT

DECREE OF ADOPTION

(Filed Dec. 14, 1994)

THIS DAY, a day of the regular December 1994 term

of the Chancery Court of Benton County, Mississippi,

there came on to be and was heard the above cause on

Complaint for Adoption of Minor Children filed by

Sammy Lee James, Individually, and as Next Friend of the

Minor Children, Samuel Lee James and Melissa Leann

James, and his Wife, Janet (Pannell) James; Response,

Affirmative Defenses, and Counter-Complaint to Com-

plaint for Adoption of Minor Children, and in the Alter-

native, for Other Relief filed by the Defendant, Melissa

Lumpkin Brooks; and on proof in open Court.

And it appears to the satisfaction of the Court that it

has jurisdiction over the parties and subject matter

herein.

It further appears that the parties herein are all resi-

dent citizens of Benton County, Mississippi, and have

App. 9

been such for more than ninety (90) days prior to the

filing of the Complaint for Adoption.

It further appears that the minor children named in

the Complaint to be adopted are Samuel Lee James, age

nine (9) years and born April 10, 1985, and Melissa Leann

James, age seven (7) and born February 13, 1987. Further,

that the Plaintiff, Sammy Lee Lames, is the natural, bio-

logical father of the minor children, Samuel Lee James

and Melissa Leann James, and Janet (Pannell) James is the

wife of Sammy Lee James, having been married on the

4th day of September, 1992. Melissa Lumpkin Brooks is

the natural biological mother of the minor children, Sam-

uel Lee James and Melissa Leann James.

It further appears to the Court, based upon the proof,

testimony, and evidence presented at the trial of this

cause held on August 18, 1994, November 2, 1994, and

December 12, 1994, that there has been a substantial

erosion of the relationship between the natural mother,

Melissa Lumpkin Brooks, and the minor children, Samuel

Lee Jaines and Melissa Leann James, which has been

caused at least in part by Melissa Lumpkin Brooks’

serious neglect, abuse, prolonged and unreasonable

absence or unreasonable failure to visit or communicate

with her minor children, as specified by Section

93-15-103(3)(e) of the Mississippi Code of 1972, as

Amended.

It further appears to the Court, having considered the

stability of environment, ties between the prospective

adopting parent and the children, moral fitness of the

parents and the home, school and community record of

the children, that it would be in the best interest of the

App. 10

minor children, Samuel Lee James and Melissa Leann

James, if the Complaint for Adoption of said minor chil-

dren was granted.

NOW, THEREFORE, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED, as follows:

(1) Pursuant to Section 93-17-7 and Section

93-15-103 of the Mississippi Code of 1972, as Supple-

mented, the parental rights of the Defendant, Melissa

Lumpkin (James) Brooks, the natural, biological mother

of the minor children, Samuel Lee James and Melissa

Leann James, be and same are hereby forever terminated,

due to the substantial erosion of the relationship between

the natural mother, Melissa Lumpkin Brooks, and the

minor children, Samuel Lee James and Melissa Leann

James, which has been caused at least in part by Melissa

Lumpkin Brooks’ serious neglect, abuse, prolonged and

unreasonable absence or unreasonable failure to visit or

communicate with her minor children.

(2) That the best interests of the minor children,

Samuel Lee James and Melissa Leann James, would be

promoted and enhanced by granting their adoption by

Janet (Pannell) James, their stepmother and wife of their

natural father, Sammy Lee James.

(3) That the Plaintiffs herein have met their burden

of proof in this cause by clear and convincing evidence.

(4) That the Plaintiffs, Sammy Lee James and Janet

(Pannell) James, were married on the 4th day of Septem-

ber, 1992, and that the Plaintiff, Janet (Pannell) James, has

become very attached to the minor children, Samuel Lee

James and Melissa Leann James, and has given them the

App. 11

care, love and affection as if said children were her own

natural children. That the said Janet (Pannell) James is a

fit, proper and suitable person to adopt said children and

share with the natural father the responsibility of their

care, custody and control and it would be to the best

interest, health and welfare of the said minor children if

said adoption were approved.

(5) That the said minor children shall inherit from

and through the adopting parent, Janet (Pannell) James,

and shall likewise inherit from the other children of the

said adopting parent to the same extent and under the

same conditions as provided for the inheritance between

brothers and sisters of the full blood by the laws of

descent and distribution of the State of Mississippi, and

the adopting parent and her other children shall inherit

from the said minor children, just as if said children had

been born to the said Janet (Pannell) James in lawful

wedlock; the minor children and the adopting parent and

the adoptive kindred are vested with all of the rights,

powers, duties and obligations respectively, as if said

children had been born to the adopting parent in lawful

wedlock, including the rights existing by virtue of Section

11-7-13 of the Mississippi Code of 1972; provided, how-

ever, that the inheritance by and through the adopted

child shall be governed as aforesaid.

(6) That the names of the adopted children shall

remain on the Birth Certificates as Samuel Lee James and

Melissa Leann James.

(7) That all parental rights of the natural mother,

Melissa Lumpkin (James) Brooks, shall be terminated,

and the natural mother and natural maternal kindred of

the children shall not inherit by and through the child,

App. 12

except this provision shall not apply to the natural father,

Sammy Lee James, who retains all rights, privileges and

obligations of natural parenthood and custody; however,

nothing shall restrict the right of any person to dispose of

property under a Last Will and Testament.

(8) The adopting parent, Janet (Pannell) James, shall

be reflected as the mother of said minor children, Samuel

Lee James and Melissa Leann James, on the Birth Certifi-

cates of said children.

(9) That a certified copy of the judgment of adop-

tion be furnished to the Bureau of Vital Statistics of the

State of Mississippi, together with the appropriate certifi-

cate of Clerk of this Court, as provided by Section

93-17-21 of the Mississippi Code of 1972, and other laws

applicable and pertaining thereto.

(10) That these proceedings be kept in a confiden-

tial file as provided by law.

(11) That the Guardian Ad Litem in this cause,

James W. Pannell, Attorney at Law, Ripley, Mississippi, be

and same is hereby awarded a fee of Five Hundred Dol-

lars ($500.00), same assessed as a portion of the court

costs in this proceeding.

(12) Plaintiff shall be taxed with all court costs in

this proceeding.

SO ORDERED, ADJUDGED AND DECREED, this the

12th day of December, 1994, entered nunc pro tunc this

the 14th day of December, 1994.

/s/ Aathens T. Farese

App. 13

IN THE CHANCERY COURT OF

BENTON COUNTY, MISSISSIPPI

SAMMY LEE JAMES, individually,

and as next friend of the minor

children, S.L.J. and M.L.J.,

and his wife, JANET (PANNELL) JAMES PLAINTIFF/

COUNTER-

DEFENDANTS

VS. CAUSE NO. 93-A-006

MELISSA LUMPKIN BROOKS DEFENDANT /

COUNTER-PLAINTIFF

NOTICE OF APPEAL

(Filed Jan. 11, 1995)

BY THIS NOTICE, Defendant/Counter-Plaintiff

Melissa Lumpkin Brooks appeals to the Supreme Court of

Mississippi from the final Decree of Adoption, and termi-

nation of her parental rights, entered on December 12,

1994.

Respectfully Submitted,

MELISSA LUMPKIN BROOKS

BY: /s/ Danny Lampley

DANNY LAMPLEY

ATTORNEY FOR

APPELLANT

POST OFFICE BOX 7245

432 MAGAZINE,

SUITE 100

TUPELO, MS 38802-7245

(601) 840-4006

MS BAR #8717

App. 14

OF COUNSEL:

NORTH MS RURAL LEGAL SERVICES

P.O. BOX 767

OXFORD, MS 38655

(601) 234-8731

[Certificate of Service Omitted in Printing]

App. 15

IN THE CHANCERY COURT OF

BENTON COUNTY, MISSISSIPPI

SAMMY LEE JAMES, INDIVIDUALLY, PLAINTIFFS

AND AS NEXT FRIEND OF THE MINOR

CHILDREN, SAMUEL LEE JAMES AND

MELISSA LEANN JAMES, AND HIS WIFE,

JANET (PANNELL) JAMES

VS. CAUSE NO. _93-A-006

MELISSA LUMPKIN BROOKS DEFENDANT

CLERK’S ESTIMATE OF COSTS

(Filed Jan. 20, 1995)

Court Reporter’s estimate

950 pages @$2.00 per page $1900.00

Chancery Clerk’s estimate

219 pages @ $2.00 per page $ 438.00

Binders 4.36

Mailing 10.00

TOTAL: $2352.36

This the 20th day of January, 1995.

/s/ Mark M. Ormon

Chancery Court Clerk

App. 16

SEAL

ce: Linda Stone, Clerk

MS Supreme Court

P. O. Box 249

Jackson, MS 39205

Danny Lampley

Attorney at Law

John Glenn Bldg., Suite 100

432 Magazine Street

P. O. Box 7245

Tupelo, MS stm ape

App. 17

IN THE CHANCERY COURT OF

BENTON COUNTY, MISSISSIPPI

S.LJ., and his wife, J.(P.)J.,

individually and as next friends

of the minor children, PLAINTIFFS/COUNTER

S.L.J. and M.L.J. DEFENDANTS

VS. CAUSE NO. 93-A-006

M.L.B. DEFENDANT /COUNTER-

PLAINTIFF

MOTION FOR LEAVE TO APPEAL

IN ‘A

(Filed Jul. 24, 1995)

COMES NOW the appellant, M.L.B., by counsel, and

moves the trial court for leave to appeal in forma pau-

peris, and would show:

1) Appellant is unable, despite having had an ample

amount of time to do so, to pay the costs of her appeal in

advance. In addition to the statements made in her Affi-

davit to Accompany Motion for Leave to Appeal in

Forma Pauperis, attached hereto as Exhibit A, Appellant

is entirely without credit which would permit her to

borrow the necessary funds; has no family members with

the financial ability to advance the costs; and her counsel,

though he would be permitted by Rule 1.8(e)(2) of the

Rules of Professional Conduct, simply does not have the

funds available to advance on her behalf.

2) Counsel is well aware of prior Mississippi

Supreme Court precedent to the effect that a civil litigant

may not appeal in forma pauperis; namely, Nelson v. Bank

of Mississippi, 498 So.2d 365 (Miss. 1986) and Life & Cas.

App. 18

Insurance Co. v. Walters, 190 Miss. 761, 200 So. 732 (1941).

However, where the State’s judicial processes are invoked

to secure so severe an alteration of a litigant’s fundamen-

tal rights - the termination of the parental relationship

with one’s natural child - basic notions of fairness, jus-

tice, of equal protection under the law, and of substantive

and procedural due process, protections guaranteed by

this State’s Constitution and the Constitution of the

United States, require that a person be afforded the right

of appellate review though ore is \unable to pay the costs

of such review in advance.

WHEREFORE, PREMISES CONSIDERED, appellant

requests that this court set a hearing at which she will be

afforded an opportunity to argue in support of her

motion to appeal in forma pauperis despite prior state

Supreme Court rulings to the contrary.

THIS the 24th day of July, 1995.

ly Submitted,

M.L.B., Appellant

8) OMY CAMPLE

y

ATTORNEY FOR

APPELLANT

P.O. BOX 7245

TUPELO, MS 38802

(601) 840-4006

MS BAR #8717

[Certificate of Service Omitted in Printing]

[Exhibits Omitted in Printing]

App. 19

IN THE SUPREME COURT OF MISSISSIPPI

M.L.B. APPELLANT

VS. CASE NO 95-TS-0052

S.L.J., Individually, and as Next

Friend of the minor children, S.L.J. and

M.L.J., and his wife, J.P.J. APPELLEES

MOTION TO SUSPEND RULES, FOR LEAVE

TO APPEAL IN FORMA PAUPERIS, AND TO

B A LS

COMES NOW the appellant, M.L.B., by counsel, and

moves this Court to suspend the operation of the Missis-

sippi Rules of Appellate Procedure, for good cause to be

shown pursuant to M.R.A.P. 2(c), for leave to appeal in

forma pauperis and for leave to brief the issue regarding

whether a civil litigant in a parental rights termination

proceeding should be allowed to appeal in forma pau-

peris, and would show:

1) In response to the Order of this Court entered

July 10, 1995 counsel for appellant has filed a Designation

of the Record (copy attached hereto as Exhibit 1), a State-

ment of the Issues (copy attached hereto as Exhibit 2),

and a Motion for Leave to Appeal in Forma Pauperis

(copy attached hereto as Exhibit 3), all filed in the trial

court on July 24, 1995.

2) As stated in her Motion for Leave to Appeal in

Forma Pauperis filed in the trial court appellant is unable

to pay the costs of her appeal in advance; is unlikely to be

able to pay the costs in the foreseeable future; and by

reason of the inability to pay some $2300.00 is in all

probability not going to be able to obtain appellate

App. 20 _

review of the lower court’s decision to terminate her

parental rights.

3) The inability to obtain appellate review of a deci-

sion involving such an extreme measure as the termina-

tion of a parent’s relationship with her natural children

solely because the appellant cannot pay for the transcript

and costs is fundamentally unfair, unjust, and violative of

the Mississippi Constitution. See Article 3, Sections 11,

14, and 24.

4) Termination of the relationship between parent

and child implicates a fundamental liberty interest pro-

tected both by the Fourteenth Amendment to the U.S.

Constitution and Article 3, Section 14 of the Mississippi

Constitution.

5) The denial because of the indigency of the appel-

lant of the right of review in a case involving such a

fiercely guarded fundamental interest - an interest “plain

beyond the need for multiple citation” that a natural

parent’s “desire for and right to ‘the companionship,

care, custody, and management of his or her children’ ” is

“more precious than any property right,” Santosky v.

Kramer, 455 U.S. 745, 758-9, 71 L.Ed.2d 599, 610 (1982),

citing Lassiter v. Department of Social Services, 452 U.S. 18,

27, 68 L.Ed.2d 640, 101 S.Ct. 2153 (1981) - appears to be a

violation of the requirement of due process and a denial

of equal protection under the law and raises a substantial

question regarding whether this Court should continue to

maintain its rule prohibiting civil in forma pauperis

appeals either in all cases or in cases in which fundamen-

tal interests are at stake.

App. 21

WHEREFORE, PREMISES CONSIDERED, appellant

requests that this Court suspend the operation of the

Mississippi Rules of Appellate Procedure pursuant to

M.R.A.P. 2(c) and permit the lower court to hear and

make a record concerning her Motion for Leave to Appeal

in Forma Pauperis; and in the event of an adverse deci-

sion, permit the appellant to cause the record of the

proceedings on the sole issue to be first separately sent

up for review and a ruling by this Court before the

appellant is required to pay the costs to have the entire

designated record sent up; or, in the alternative, it is

requested that this Court in the first instance consider the

issue of an appeal in forma pauperis in parental rights

termination cases, rather than have the matter first heard

in the lower court, and if this Court should so elect, allow

the appellant to fully brief the specific issue in this Court.

THIS the 27th day of July, 1995.

Respectfully Submitted,

M.L.B,, Appellant

/s/ Danny Lample

DANNY LAMPLEY

ATTORNEY FOR

APPELLANT

P.O. BOX 7245

TUPELO, MS. 38802

(601) 840-4006

MS BAR #8717

[Certificate of Service Omitted in Printing]

[Exhibits Omitted in Printing]