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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996

## Text

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]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0670%3A2. Public record. Not legal advice.