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Miller v. Smith

Supreme Court of Mississippi, En Banc

October 26, 2017

DALE PATRICK MILLER
v.
JESSICA DAWN SMITH

          DATE OF JUDGMENT: 10/13/2014

         ON WRIT OF CERTIORARI

         TATE COUNTY CHANCERY COURT HON. VICKI B. DANIELS TRIAL JUDGE

          TRIAL COURT ATTORNEY: VANESSA WINKLER PRICE

          ATTORNEYS FOR APPELLANT: JERRY WESLEY HISAW WILLIAM BOLTON SEALE

          ATTORNEY FOR APPELLEE: CHARLES E. HODUM

          WALLER, CHIEF JUSTICE.

         ¶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 ...


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