[Copyrighted Material Omitted]
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CHANCERY COURT. DATE OF JUDGMENT: 08/03/2012. TRIAL JUDGE: HON. DAVID SHOEMAKE.
FOR APPELLANT: MARK A. CHINN, MATTHEW THOMPSON.
FOR APPELLEE: S. CHRISTOPHER FARRIS.
BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ. WALLER, C.J., DICKINSON, P.J., KITCHENS, CHANDLER, AND PIERCE, JJ., CONCUR. RANDOLPH, P.J., AND LAMAR, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. KING, J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
[¶1] Carla Darnell (" Carla" ) and William Duff Darnell (" Duff" ) were married in 2004 and divorced by judgment of the Chancery Court of Jefferson Davis County on August 6, 2012. The couple had one child, a son, C.D., in 2006. While the divorce was pending, C.D. exhibited behaviors which may have suggested sexual abuse. Duff denied any abuse, and investigations by the Department of Human Services did not substantiate abuse. No charges were filed against Duff. Carla sought a temporary protective order and consulted with a child-abuse expert who determined that C.D. exhibited behaviors that were indicative of abuse. Carla sought sole physical custody of C.D. Instead, the chancellor granted physical custody of C.D. to Duff, stating that Carla had been the one pursuing the child-abuse allegations when it was clear that none had occurred and that the Albright factors weighed in favor of Duff. Carla appealed. The Court reverses the chancellor's decision and remands for new findings of fact and conclusions of law which take into account some of C.D.'s statements, which were not admitted at trial.
FACTS AND PROCEDURAL HISTORY
[¶2] Carla and Duff were married on November 20, 2004, in Antigua, West Indies. The couple had a son, C.D., born July 12, 2006. They lived together in Prentiss, Mississippi, until September 2010, when they separated and Duff moved out of the marital home. Duff was in the military, and had been deployed for a year from March 2009 to March 2010. Though not divorced, the two remained separated, and even set up a visitation schedule for Duff to be with C.D. at his home in the Hattiesburg area. Duff reported to the guardian ad litem that Carla became " increasingly controlling of the pattern and timing of visitation." Carla said that she was afraid that Duff would not return C.D. after visitation because of the tensions between the two. Although the two tried to work on the marriage, it seemed a divorce was inevitable.
[¶3] In February 2011, Carla filed for a divorce on grounds of habitual cruel and inhuman treatment, or, in the alternative, irreconcilable differences. Carla sought " full legal and physical custody" of C.D., with " regular visitation" for Duff. Duff denied the allegations of cruel and inhuman treatment, and the divorce proceeded apace. In late March 2011, two separate incidents involving C.D. at his daycare impacted the divorce proceeding. On March 25, 2011, Machelle Dyess, the director of the Prentiss Baptist Daycare, observed C.D. with his hands between the legs of a girl who was sitting next to him. When Dyess asked C.D. what he was doing, he told her that he was " just tickling."  Dyess testified that C.D. was always very touchy with the other children and often got into trouble. Dyess did not then report that behavior to C.D.'s parents.
[¶4] The following Monday, March 28, 2011, C.D.'s teacher, Dana Walker, overheard him tell a little girl, " I'm going to
eat your privates."  When Walker heard the statement, she and Dyess took C.D. to Dyess's office and asked him to explain what he had said. C.D. told her, " That's the way me and my daddy play." Dyess admitted that, from the context of the sentence, she couldn't tell whether C.D. meant that his father had told him about eating privates, or whether he and his father had tickled each other. Dyess called Carla and had her come to the school, where Dyess informed Carla what C.D. had said, and also that he had touched another girl on the previous Friday. Dyess informed Carla that she had to write a report and notify the Department of Human Services.
[¶5] Independently, Carla contacted her counselor, Ruth Glaze, who referred Carla to her husband, Henry Glaze, an officer in the Juvenile Division of the Hinds County Sheriff's Department. He told Carla to contact law-enforcement authorities, and that the Department of Human Services would become involved because the daycare would report the incident. Tierra Oatis, a family-protection worker for the Department of Human Services, contacted Carla. Oatis met with C.D. in Carla's home on March 29, 2011. Oatis reported that C.D. had told her that his father had hurt his " pee-pee." When Oatis asked C.D. what his dad did to him he did not respond. C.D. also said that his mother never abused him, and that there was nothing that he wanted to tell Oatis.
[¶6] Oatis scheduled a forensic interview with C.D. at the Child Advocacy Center in Hattiesburg, on April 11, 2011. Child Advocacy Center employee Cheryl Caldwell conducted the interview while Oatis watched and listened through a window. During the interview, C.D. often proved unresponsive and stated, " I don't know," to many of the questions. C.D. stated that his father did touch him, but when asked if anyone told him to say that, he ran out of the interview room, and the interview concluded. The Department of Human Services report filed by Oatis concluded that " there [was] no evidence to suggest that any sexual abuse ha[d] occurred at th[at] time." However, the report did note that there were " reasons to believe that sexual abuse/exploitation is suspected. . . ." The agency referred the child to counseling services so that, if any information regarding abuse came to light, the child already would be receiving treatment. Finally, the agency notified Duff that he could resume visitation with C.D. The next day, Carla recorded in writing an alleged occurrence in which C.D. told her that his father " spanks [C.D.'s] pee pee," and pleasured himself at the same time. She then brought C.D. to see Dr. Scott Benton, a pediatrician specializing in child sexual abuse on April 14, 2011, three days after the Department of Human Services concluded that there was no evidence of sexual abuse.
[¶7] Carla told Dr. Benton about the allegations of abuse. She also told Dr. Benton that, one night in August 2010, she and Duff were sleeping in the bed with C.D. between them when she witnessed Duff masturbating. She told Dr. Benton that Duff's superior officer, Captain Gary Kinsey, told her that Duff admitted to masturbating while in bed with C.D.; Kinsey denied making such statements. She also told him about the incidents at C.D.'s daycare, as well as C.D.'s story about Duff " spanking his pee pee." Dr. Benton attempted
to interview C.D. but said he was " easily distracted and strong willed" and that he was unresponsive to several questions. Dr. Benton found that the history relayed by Carla " was suggestive for sexual abuse of C.D. by his father," and recommended that C.D. be placed in protective placement away from Duff during the investigation of the allegations.
[¶8] On April 27, 2011, Carla obtained a no-contact order from the Youth Court of Jefferson Davis County. The judge ordered no contact between C.D. and his father until the investigation by the Department of Human Services and the Prentiss Police Department concluded. The court apparently relied upon the findings of Dr. Benton and Carla's recollection of events. Duff did not participate in the youth-court proceedings.
[¶9] In May 2011, the chancellor ordered that a guardian ad litem be appointed. On June 6, 2011, Chancellor David Shoemake granted temporary relief, giving Carla and Duff joint legal custody, with primary physical custody to Carla. Duff was given visitation every other week during the summer of 2011. The guardian ad litem submitted her report on September 6, 2011. She extensively observed C.D. with both of his parents during the summer. The guardian ad litem did not observe any strange behavior between C.D. and Duff, and concluded that there " were no CLEAR signs of abuse," although there were indications, given C.D.'s comments and behavior at daycare. She stated that " there was absolutely nothing that would lead me to believe that this child was not thoroughly enjoying the visit with his father during the time of my observation." The guardian ad litem recommended that custody should not be determined until both parties agreed to find out why C.D. said and did the things that he did.
[¶10] The chancellor held a hearing on Carla's petition for divorce and custody and Duff's counterclaim for custody on November 3, 2011. The hearing recessed and then continued on March 1, 2012. On November 3, 2011, the guardian ad litem submitted a supplemental report. The guardian ad litem conducted an Albright  analysis to determine what outcome would best serve the interests of the child and found that neither parent was favored. The guardian ad litem recommended that the parents share joint legal and physical custody of C.D., with Carla having him during the school year and Duff during the summer. At the November 2011 hearing, the chancellor refused to admit any of C.D.'s statements, deeming them inadmissible hearsay not meeting the requirements of the tender years exception. He also refused to allow Dr. Benton to testify, because his conclusions were based upon Carla's recitation of the events, C.D.'s statements at daycare, and C.D.'s interviews with the Department of Human Services and Child Advocacy Center. The chancellor found that any opinion Dr. Benton could render in regard to C.D. would be " unsupported speculation" and inadmissible. After a recess, the parties entered an agreed motion for an irreconcilable differences divorce, with Carla withdrawing her plea for a fault-based divorce. Although Duff's attorney asked the chancellor to address visitation for only Thanksgiving and Christmas until a final ruling on custody could be made, the chancellor changed the temporary custody order and awarded custody to each parent for alternating two-week periods.
[¶11] The chancellor held a final hearing on March 1, 2012. Prior to the final hearing, the guardian ad litem submitted an updated report to the effect that the two-week alternating custody was not in C.D.'s best interest, and that a different custody arrangement needed to be made. At the hearing, Duff called several witnesses in support of his counterclaim. Ultimately, the chancellor conducted his own Albright analysis and issued a final ruling on divorce and custody on August 6, 2012. The chancellor granted the divorce based on irreconcilable differences and found that the Albright factors weighed in Duff's favor, granting him primary physical custody of C.D. during the school year, with visitation for Carla on alternating weekends. He gave physical custody of C.D. to Carla for the summer, with visitation for Duff on alternating weekends.
[¶12] Carla filed a Motion for New Trial, Reconsideration and for Relief from Judgment, which the chancellor denied. Carla timely perfected her appeal, asserting the following errors:
1. The statements given by C.D. should have been admitted, as they were not hearsay, or, alternatively, they should have been admitted under the tender years hearsay exception defined in Mississippi Rule of Evidence 803(25).
2. The chancellor erred in forbidding the testimony of Dr. Benton and applied the incorrect " beyond a reasonable doubt" standard in making his rulings.
3. The chancellor failed to state why he did not follow the guardian ad litem's recommendations, and failure ...