Dale Patrick Miller v. Jessica Dawn Smith , 229 So. 3d 100 ( 2017 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CT-00330-SCT
DALE PATRICK MILLER
v.
JESSICA DAWN SMITH
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 10/13/2014
TRIAL JUDGE: HON. VICKI B. DANIELS
TRIAL COURT ATTORNEY: VANESSA WINKLER PRICE
COURT FROM WHICH APPEALED: TATE COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: JERRY WESLEY HISAW
WILLIAM BOLTON SEALE
ATTORNEY FOR APPELLEE: CHARLES E. HODUM
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 10/26/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
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.
1
We have continued to use the alias “Kristen” fashioned by the Court of Appeals
because of the allegations of sexual abuse.
2
The different names involved in this litigation are confusing. For simplicity, Barbara
Keller will be referred to as “Smith’s mother” or “Smith’s parents” for Smith’s mother and
father.
2
¶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
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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.
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¶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
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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,
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
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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 reemphasized that “[t]he court
may not consider granting custody to a third party, including one standing in loco parentis,
unless and until the third party rebuts [the natural-parent] presumption.” Id. at 311 (¶ 14).
Miller did not rebut the natural-parent presumption. And we find substantial evidence within
the record to support the chancellor’s conclusion that Miller did not stand in loco parentis.
Accordingly, we affirm the judgments of the chancery court and Court of Appeals on this
issue.
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II. Whether Miller’s exclusion during Kristen’s testimony warrants
reversal.
¶19. The issue regarding Miller’s removal from the courtroom during the testimony of
Kristen had relevance only while an issue existed concerning the custody of Morgan. A
subsequent custody ruling of the trial court has granted custody of Morgan to Miller. We
address the issue, though, because of conflicts in our caselaw as discussed below. See Alford
v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1214 (¶ 8) (Miss. 2010) (issue not moot if
question concerns a matter “detrimental to the public interest that there should be a failure
by the dismissal to declare and enforce a rule for future conduct.”) (citation omitted).
The Confrontation Clause of the Sixth Amendment
¶20. Miller argues the Confrontation Clause of the Sixth Amendment applies in this case,
even though it is a civil case. By its own language, the Confrontation Clause extends only
to criminal cases. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with witnesses against him . . . .”) (emphasis added);
Hannah v. Larche, 363 U.S. 420, 440, 80 S. Ct. 1502, 1513, 4 L. Ed. 2d 1307 n.16 (1960)
(“[The Sixth] Amendment is specifically limited to ‘criminal prosecutions’ . . . .”). As the
Court of Appeals correctly observed, “The Confrontation Clause only applies to criminal
cases. . . . So [Miller’s] first argument fails.” Miller, 2016 WL 6876509, at *3 (¶ 17).
¶21. According to Miller, the Court of Appeals’ decision is contrary to this Court’s
precedent. To support his argument, Miller relies on In Interest of C.B., where we held
“[t]his is not a criminal case, but we are of the opinion that the right of confrontation should
be accorded to an accused parent in” youth-court cases. In Interest of C.B., 574 So. 2d 1369,
8
1374 (Miss. 1990).3 In a recent concurrence, though, Justice Beam wrote that our statement
in In Interest of C.B. “was nonauthoritative dicta.” In re J.T., 188 So. 3d 1192, 1205 (¶ 71)
(Miss. 2016) (Beam, J., concurring in part and result).
¶22. This Court cannot ignore the plain language of the Sixth Amendment, which limits
its own application to “criminal prosecutions.” To the extent we held in the case of In
Interest of C.B., 574 So. 2d at 1374, that the Sixth Amendment applies in civil proceedings,
today we overrule it.
Article 3, Section 25 of the Mississippi Constitution
¶23. Miller argues his removal from the courtroom violated Article 3, Section 25 of the
Mississippi Constitution. “No person shall be debarred from prosecuting or defending any
civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Miss.
Const., art. 3, § 25. The Court of Appeals rejected Miller’s argument, finding no violation
“[b]ecause [Miller’s] counsel was present during Kristen’s testimony . . . .” Miller, 2016 WL
6876509, at *4. However, the provision prohibits debarment of the individual “by him or
herself.” Miss. Const. art. 3, § 25. The presence of Miller’s counsel did not cure the error that
Miller, individually, was removed from the courtroom. As a result, a violation of Article 3,
Section 25 occurred.
Harmless-Error Analysis
3
This statement has been used in briefing before the U.S. Supreme Court in support
of extending the Confrontation Clause into civil cases. Brief of Amicus Curiae in Support of
Petition at 6, Ohio v. Clark, (No. 13-1352), 2014 WL 2612613, *6 (June 11, 2014) (citing
In Interest of C.B., “Mississippi courts have expressly held that the Sixth Amendment’s
Confrontation Clause affords civil litigants in child custody cases the right to confront
witnesses against them.”).
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¶24. While the removal of Miller was error, the issue may be reviewed under harmless-
error analysis. Smith v. State, 986 So. 2d 290, 300 (¶ 30) (Miss. 2008); see also United
States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007).
¶25. First and foremost, while Miller was absent, his attorney was present during the entire
questioning. And Miller fails to explain how the examination would have changed had he
been present alongside his attorney. See Jones v. State, 912 So. 2d 973, 977 (¶ 16) (Miss.
2005) (“Assertions of error without prejudice do not trigger reversal.”).
¶26. While a Sixth Amendment case, the decision in Rollins v. State is instructive on the
issue of removing a defendant from the courtroom. Rollins v. State, 970 So. 2d 716 (Miss.
2007). In Rollins, the grand jury returned a multicount indictment charging the defendant
with crimes related to sexual battery of children. Id. at 717 (¶ 2). The trial court allowed the
children to testify through closed-circuit television. Id. at 717 (¶ 3). The defendant was
removed from the courtroom to watch the television screen alone. Id. at 719 (¶ 5). However,
technical difficulties arose, and the defendant was unable to view the witnesses on the screen.
Id. at 721 (¶ 11). Because of the inability to see the witnesses and view their demeanor, the
defendant raised confrontation issues, claiming a violation of his right required reversal. Id.
at 722 (¶ 13). However, this Court held, “in order to receive a new trial, [the defendant] must
show the denial of his right to view the demeanor of the minor witnesses prejudiced him.”
Id. The Court continued: “[S]ince [the defendant] does not argue that he was prejudiced or
demonstrate how he was prejudiced, this argument is without merit.” Id.
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¶27. This Court finds that the same reasoning in the Sixth Amendment cases of Jones and
Rollins should apply to Miller’s objections under Article 3, Section 25 of the Mississippi
Constitution. Smith must show how he was prejudiced by the procedure used by the trial
court. See Goins v. State, 155 Miss. 662, 124 So. 785, 786 (1929) (holding a constitutional
error “did not require a reversal, because it did not result in any injury to the defendant . . .
.”).
¶28. The trial court should have provided a mechanism, such as closed-circuit TV, for
Miller to observe witness testimony when he was removed from the courtroom. However,
as the U.S. Supreme Court has held, “most constitutional errors can be harmless.” Neder v.
United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (quoting
Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d 302
(1991)). We hold that, due to the lack of prejudice to Miller, Miller’s erroneous removal was
harmless.
CONCLUSION
¶29. Accordingly, the judgments of the chancery court and the Court of Appeals are
affirmed.
¶30. AFFIRMED.
COLEMAN, MAXWELL AND CHAMBERLIN, JJ., CONCUR. BEAM, J.,
CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE
WRITTEN OPINION JOINED IN PART BY BEAM, J. KITCHENS, P.J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. ISHEE, J., NOT
PARTICIPATING.
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RANDOLPH, PRESIDING JUSTICE, CONCURRING IN PART AND IN
RESULT:
¶31. I concur with Part I of the Majority opinion, but would respectfully find that the issue
addressed in Part II is moot.
BEAM, J., JOINS THIS OPINION IN PART.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶32. The chancellor’s having ordered Dale Patrick Miller to absent himself from the
courtroom with no ability to monitor the proceedings or consult with counsel violated
Miller’s rights guaranteed by Article 3, Section 25, of the Mississippi Constitution. I cannot
join the majority’s determination that this was harmless error. I would reverse and remand
this case for a new trial.
¶33. Article 3, Section 25, of the Mississippi Constitution states: “[n]o person shall be
debarred from prosecuting or defending any civil cause for or against him or herself, before
any tribunal in the state, by him or herself, or counsel, or both.” Miss. Const. art. 3, § 25. The
word “‘debar’ means ‘1. To bar or exclude: shut out. 2. To forbid, hinder, or prevent.’” Dunn
v. Yager, 58 So. 3d 1171, 1189 (Miss. 2011) (quoting Webster’s II New College Dictionary
290 (1995)). And “[t]o ‘prosecute’ means ‘1. To pursue or persist in so as to finish. . . . 3.a.
To initiate legal or criminal court action against. b. To seek to enforce or obtain by legal
action.’” Dunn, 58 So. 3d at 1189 (quoting Webster’s II New College Dictionary 888
(1995)). Thus, this Court has held “the plain language of Article 3, Section 25[,] lends itself
to permitting a civil litigant, his or her counsel, or both, not only [to commence] the legal
action, but also [to bring] it to completion.” Dunn, 58 So. 3d at 1189.
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¶34. This Court has found that Article 3, Section 25, guarantees a civil litigant a
constitutional right to participate in closing argument even though that litigant is represented
by counsel. Id. And in a child-custody-modification case in which the minor child has been
made a party, the Court of Appeals has found that, so long as the child remains a party, the
chancellor’s order prohibiting the minor child’s attorney from consulting with the child about
the trial violates Article 3, Section 25. In re E.C.P., 918 So. 2d 809, 826–27 (Miss. Ct. App.
2005).
¶35. Article 3, Section 25, protects a litigant’s right to hear an opposing witness’s
testimony and consult with his legal counsel about the same. A litigant’s ability to consult
with his attorney is such a fundamental component of our adversarial system of justice that
it constitutes an essential element of a criminal defendant’s competence to stand trial.
Sanders v. State, 9 So. 3d 1132, 1135 (Miss. 2009) (quoting Dusky v. United States, 362
U.S. 402, 80 S. Ct. 788, 788–89, 4 L. Ed. 2d 824, 825 (1960)). A litigant who is denied the
opportunity to observe or even hear a witness’s testimony loses his ability to consult with his
attorney about that testimony.
¶36. This is not to say that the Constitution guarantees a civil litigant the right always to
be physically present in the courtroom. Our Rules of Evidence recognize that other means
exist to provide litigants an opportunity to observe testimony while protecting witnesses from
negative effects likely to be created by a litigant’s physical presence. See Miss. R. Evid. 617.
But Article 3, Section 25, requires trial judges to provide some workable mechanism for
litigants to consult with counsel and to observe the testimony of every witness, in order to
13
make informed decisions as to whether or how to proceed “by him or herself, or counsel, or
both.” Miss. Const. art. 3, § 25.
¶37. Here, over Miller’s objection, the chancellor failed to provide such a mechanism.
Miller timely asserted his right to observe the alleged victim’s testimony, but the chancellor
excluded him from the courtroom without providing any way for him to observe the
testimony or consult, contemporaneously, with counsel. This violated Miller’s rights under
Article 3, Section 25.4
¶38. Outside Miller’s presence, the alleged victim testified not only about the alleged
abuse, but also provided a lengthy account about Miller’s relationship with Morgan and
Smitty, the children whose custody was at issue. The chancellor ultimately held that Miller
did not stand in loco parentis with Smitty and, against the recommendation of the guardian
ad litem, denied his request for custody. The majority finds that Miller’s exclusion from the
courtroom was error, but then divines that Miller was not prejudiced by such exclusion. Our
review of the record does not allow us to discern whether, had Miller been present for the
alleged victim’s testimony, he might have suggested cross-examination questions to his
counsel concerning parts of her testimony. And we cannot say that he would not have chosen
to cross-examine her himself. An inherent uncertainty arises when a trial judge
unconstitutionally denies a litigant his right to participate fully in the trial court litigation. In
4
I do not address a situation in which a litigant’s conduct necessitates his or her
removal from the courtroom for the purpose of maintaining order, since that factor was not
present in this instance.
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view of that uncertainty, we cannot know whether Miller’s exclusion from the courtroom
prejudiced or otherwise affected his defense.
KING, J., JOINS THIS OPINION.
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