OF JUDGMENT: 10/13/2014
COUNTY CHANCERY COURT HON. VICKI B. DANIELS TRIAL JUDGE
COURT ATTORNEY: VANESSA WINKLER PRICE
ATTORNEYS FOR APPELLANT: JERRY WESLEY HISAW WILLIAM BOLTON
ATTORNEY FOR APPELLEE: CHARLES E. HODUM
WALLER, CHIEF JUSTICE.
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
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.
AND PROCEDURAL HISTORY
Dale Miller and Jessica Smith began a romantic relationship
in 1998. Smith had a daughter, Kristen,  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
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.
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.
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.
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
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.
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.
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.
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
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.
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 ...