Miller v. Smith

• Citation: 229 So.3d 100
• Decision Date: 26 October 2017
• Docket Number: NO. 2015–CT–00330–SCT,2015–CT–00330–SCT
• Court: United States State Supreme Court of Mississippi
• Parties: Dale Patrick MILLER v. Jessica Dawn SMITH

229 So.3d 100

Dale Patrick MILLER

v.Jessica Dawn SMITH

NO. 2015–CT–00330–SCT

Supreme Court of Mississippi.

October 26, 2017

ATTORNEYS FOR APPELLANT: JERRY WESLEY HISAW, WILLIAM BOLTON SEALE

ATTORNEY FOR APPELLEE: CHARLES E. HODUM

EN BANC.

ON WRIT OF CERTIORARI

WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. Dale Patrick Miller and Jessica Dawn Smith agreed to an irreconcilable-differences divorce, leaving to the Tate County Chancery Court issues of custody, care, and visitation of two children, Smitty and Morgan. Miss. Code Ann. § 93–5–2(3) (Rev. 2013). As to Smitty, the chancellor terminated Miller's parental rights because Miller was not the biological father of Smitty nor did he stand in loco parentis to Smitty. As to Morgan—the biological child of Miller and Smith—the chancellor awarded custody to Smith.

¶ 2. The Court of Appeals affirmed the chancellor's judgments. On petition for certiorari to this Court, Miller raises two issues: (1) whether the trial court erred in terminating his parental rights to Smitty; and (2) whether his right to confrontation under the Sixth Amendment to the U.S. Constitution and his right to be present under Article 3, Section 25 of the Mississippi Constitution were violated when the chancellor removed Miller from the courtroom during the testimony of Smith's oldest daughter of a previous relationship. We affirm, yet with respect to the second issue, we find it was error, but harmless, for the chancellor to remove Miller from the courtroom.

FACTS AND PROCEDURAL HISTORY

¶ 3. Dale Miller and Jessica Smith began a romantic relationship in 1998. Smith had a daughter, Kristen,¹ from a previous relationship. In 2004, Smith had a son, Smitty. Four months after Smitty's birth, Miller went to prison for eighteen months. When Miller was released from prison, Smith was in rehabilitation. Smith's children were under the temporary custody of Smith's mother, Barbara Keller ("Smith's mother"),² so Miller stayed with Smith's mother and the children. Miller and Smith married in January 2009. A year later, the couple had a daughter, Morgan. A month after Morgan was born, a Tennessee juvenile court returned custody of Kristen and Smitty to Smith.

¶ 4. In August 2010, Miller and Smith separated after Smith accused Miller of touching Kristen inappropriately. Smith reported the incident to the sheriff's department and to the Mississippi Department of Human Services (MDHS). MDHS found no evidence to prove "fondling or touching for sexual or lustful purposes" but restricted Miller to supervised visitation with the children.

¶ 5. Smith went to prison in 2012 for violating the terms of her probation stemming from her 2002 guilty pleas to forgery and three counts of theft in Tennessee. As a result, the children went to live with Smith's mother. Miller had no contact with the children while Smith was in prison, nor did he support them financially.

¶ 6. In November 2012, Miller filed for divorce and sought custody of Smitty and Morgan. Smith's parents moved to intervene and sought DNA testing. Both motions were granted, and the testing showed Miller as the biological father of Morgan only.

¶ 7. Miller thereafter amended his divorce complaint and claimed he stood in loco parentis to Smitty. Miller said he accepted and acknowledged paternity by signing the birth certificate and raising Smitty as his own. No one else claimed paternity, and Smitty knew no other father. Smith answered by accusing Miller of "cruel [and] unusual demeaning immoral abuse." She charged that she removed Miller from their home after he sexually assaulted Kristen.

¶ 8. Based on the abuse allegations, the chancellor appointed a guardian ad litem. In her preliminary report, the guardian ad litem recommended that Miller have custody of Morgan but made no recommendation as to Smitty. In September 2013, the chancellor entered a temporary order (1) requiring Smitty and Morgan to remain with Smith's parents; (2) granting Miller visitation; and (3) ordering him to pay monthly child support for both children.

¶ 9. Before trial, the couple stipulated to an irreconcilable-differences divorce. Thus, the trial proceeded on custody, visitation, child support, health insurance, tax deductions, and college expenses for Smitty and Morgan.

¶ 10. During trial, Kristen testified that Miller had sexually abused her. Because Kristen was seventeen years old at the time, and because of the sensitive nature of her testimony, the chancellor removed Miller from the courtroom. Miller's attorney objected to his removal because the chancellor did not provide Miller with any method to observe Kristen's testimony. The chancellor overruled the objection, and Miller's attorney remained in the courtroom.

¶ 11. After the trial, the chancery court awarded Smith sole physical and legal custody of Smitty and Morgan. It found that all but three of the Albright factors favored Smith. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). The chancery court also terminated Miller's parental rights as to Smitty. According to the chancellor, "Miller is not the biological father of [Smitty], [he] has not established a prima facie case that he stands in loco parentis with [Smitty], and has not established that he had a relationship with [Smitty]." Because of the chancery court's "extreme concern" that Miller had "acted inappropriately" with Kristen, it granted him only supervised visitation with Morgan.

¶ 12. Miller appealed, and the case was assigned to the Court of Appeals. On November 14, 2016, the chancery court, in a different proceeding from the underlying appeal, awarded Miller custody of Morgan. Eight days later, the Court of Appeals rendered its decision in Miller's case. After the ruling by the Court of Appeals, Miller filed motions for rehearing and extraordinary relief to supplement the record with a copy of the custody order from November 14, 2016. The Court of Appeals denied supplementation because the motion was filed ten days after its decision was handed down.

¶ 13. Before this Court, Miller challenges the chancery court's and the Court of Appeals' judgments regarding Smitty. He raises two issues:

(1) whether the chancellor abused his discretion in terminating Miller's parental rights to Smitty;

(2) whether Miller's exclusion from the courtroom during Kristen's testimony warrants reversal.

STANDARD OF REVIEW

¶ 14. "This Court's scope of review in domestic relations matters is limited." Chesney v. Chesney, 849 So.2d 860, 862 (¶ 8) (Miss. 2002) (citing Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss. 2000) ). "[A]bsent an abuse of discretion, we will uphold the decision of the chancellor."

Hollon v. Hollon, 784 So.2d 943, 946 (¶ 11) (Miss. 2001). In other words, "[a] chancellor's findings of fact will only be reversed when the record possesses no credible evidence to support them." Collins v. Collins, 112 So.3d 428, 433 (¶ 16) (Miss. 2013). "However, the chancery court's interpretation and application of the law is reviewed under a de novo standard." In re Guardianship of Savell, 876 So.2d 308, 312 (¶ 4) (Miss. 2004) (citations omitted).

DISCUSSION

I. Whether the chancellor abused his discretion in terminating Miller's parental rights to Smitty.

¶ 15. Miller asserts that the chancellor erred in determining he did not stand in loco parentis to Smitty and, based on that determination, erred in terminating his parental rights. In loco parentis means "in the place of a parent." Farve v. Medders, 241 Miss. 75, 81, 128 So.2d 877, 879 (1961). It is defined as "one who has assumed the status and obligations of a parent without a formal adoption." Id. More specifically, "[a]ny person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child is said to stand [in loco parentis]." Logan v. Logan, 730 So.2d 1124, 1126 (¶ 8) (Miss. 1998) (citation omitted). Whether in loco parentis status exists is "a matter of intention and of fact to be deduced from the circumstances of the particular case." Farve, 128 So.2d at 879 (citation omitted).

¶ 16. The chancellor, sitting as the finder-of-fact, determined that the circumstances of this case failed to confer in loco parentis status on Miller. And the Court of Appeals found substantial evidence within the record to support the chancellor's decision. Miller v. Smith, 229 So.3d 148, 152-53, 2016 WL 6876509, at *3 (¶ 17) (Miss. Ct. App. Nov. 22, 2016). First, when Smitty was only a few months old, Miller was sentenced to prison for eighteen months. After prison, Miller did not remain a constant in Smitty's life. According to Smith, Miller provided no financial assistance to Smitty before their marriage. Miller also admitted he did not visit Smitty while Smith was in prison during 2012 and 2013. Smith's parents claimed that, after their 2012 motion for DNA testing, Miller had neither contacted nor supported the children in more than a year.

¶ 17. Miller correctly notes there is some support within the record for his standing in loco parentis. However, "[w]henever there is substantial evidence in the record to support the chancellor's findings of fact, those findings must be affirmed." In re Conservatorship of Bardwell, 849 So.2d 1240, 1245 (¶ 16) (Miss. 2003). As did the Court of Appeals, we find this record supports the findings of the chancellor.

¶ 18. Miller further argues, though, that the Court of Appeals erred by not considering this Court's decision in the case of In re Waites, 152 So.3d 306, 312 (¶ 15) (Miss. 2014). According to Miller, our decision there set forth factors to determine whether a step-parent can be put on the same level as the natural parent. What this Court held, though, was that "[i]n loco parentis can—in very limited, unique situations—sometimes be used to help rebut the natural-parent presumption." Id. But we have never suggested "that in loco parentis alone can rebut the natural-parent presumption." Id. Moreover, we...