ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, October 7, 1996 TAG: 9610070092
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: JACKSON, MISS.
SOURCE: GINA HOLLAND THE ASSOCIATED PRESS NOTE: Below
MELISSA BROOKS couldn't afford to appeal the custody case, and believes she has the constitutional right to it.
The grinning faces of two sandy-haired toddlers stare out from a fading photo Melissa Lumpkin Brooks carries on her key chain.
She glances at it often while waitressing at a Memphis, Tenn., steak house. The photo briefly takes her mind off of worrying how to pay her rent. But it also brings the 28-year-old Brooks heartache. A Mississippi court says her son, now 11, and daughter, 9, are no longer hers.
The U.S. Supreme Court will hear arguments today on Brooks' contention that her constitutional rights to equal protection were violated when Mississippi courts refused to hear her appeal because she could not afford the legal fees.
Mississippi courts require appellants to pay all fees up front, which can sometimes mean lump sums in the thousands.
The case raises the question ``whether we're going to allow a state to have separate systems of justice, one for the rich and a lesser one for the poor,'' said Jackson attorney Robert McDuff, who's representing Brooks for free.
The Supreme Court has already said states must pay for appeals by poor people in criminal cases, and David Ingebretsen, state director of the American Civil Liberties Union, which is assisting Brooks, said most states defer costs in certain civil cases involving the poor.
``Our argument is that in civil cases involving fundamental rights - such as parental rights, divorce, child custody - the right of appeal should exist regardless of your ability to pay,'' Ingebretsen said. ``The U.S. Supreme Court has never ruled on this issue.''
Brooks' case deals only with appeals by poor people for parental rights, but McDuff said a favorable ruling could prompt requests for deferred costs in other civil appeals.
Brooks was a pregnant 16-year-old when she married her sweetheart, Sammy James, a cabinetmaker. They had a son and, two years later, a daughter. The marriage soured and the couple divorced in 1992.
In 1993, James sought to end Brooks' parental rights so his new wife could adopt the children, who were in his custody. Brooks had moved out of state fleeing poverty and bad memories; under terms of the divorce, Brooks had the right to visit the children, but James asserts she never did.
After a Benton County Chancery Court judge ruled in James' favor, Brooks returned to Mississippi to hire a lawyer and fight for her kids.
But the Mississippi Supreme Court last year refused to hear her case when she could not raise the $2,350 in fees required to file the appeal.
State Assistant Attorney General Rickey Moore insists the rule requiring prepayment of all civil appeal costs is legal. About 100,000 civil cases are filed in Mississippi courts each year, he said, and the state cannot afford to foot the bill for those who can't pay.
In the state's brief, Moore said a ruling for Brooks would create ``a new and expansive constitutional right that is not supported by principle and which would result in potentially huge additional expenses being heaped upon the states.''
Brooks last saw her children two years ago and said sticking with the case hasn't been easy.
``For a while I thought I'd just give up, but I just couldn't. I had to keep trying. I try to hold my head up and keep going,'' she said.
But William Fortier, James' attorney, said the children are better off without their natural mother.
``These kids were the most unruly, undisciplined, uncontrollable type children you've ever seen,'' he said. ``After a few months they went to being the best behaved, sweetest, kindest children you could ever hope for.''
The boy ``went from flunking the first grade to being on the honor roll the next two years,'' Fortier said.
There were allegations Brooks verbally and mentally abused her children, he asserted, and ``the children just clearly did not want Melissa Brooks to be their mother anymore.''
At the time of the divorce, Brooks ``was living with a convicted felon who drank heavily and could be violent,'' according to court records. James' suit to terminate her parental rights claimed his ex-wife abandoned the children and was physically unfit to raise them.
Brooks acknowledges she had problems. After the divorce, the 5-foot-9-inch woman's weight fell 70 pounds, to a gaunt 100 pounds.
``I lived in an old bummed-out trailer, didn't have nothing, a car or anything. I just didn't eat,'' she said.
Brooks wants at least partial visitation rights, but is ``scared that I'm going to be hurt again.''
The key chain holds the only picture she has of her two children. ``It goes everywhere I go,'' she said.
LENGTH: Medium: 92 lines ILLUSTRATION: PHOTO: AP. Melissa Brooks, of Memphis, Tenn., holds a photo ofby CNBher children Friday. The Supreme Court will hear arguments in
Brooks' case today. color.