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Garner v. Garner

Supreme Court of Mississippi, En Banc

October 3, 2019

APRIL QUEN GARNER (JAIME GARCIA)
v.
JUDI L. GARNER, RONALD CLYDE FOX AND DAVID SMITH

          DATE OF JUDGMENT: 04/16/2018

          DESOTO COUNTY CHANCERY COURT ATTORNEY FOR HON. PERCY L. LYNCHARD, JR. JUDGE

          APPELLANT: JERRY WESLEY HISAW

          ATTORNEY FOR APPELLEES: GORDON C. SHAW, JR.

          GRIFFIS, JUSTICE

         ¶1. April Garner appeals the chancellor's custody modification awarding custody of her minor child to the child's uncle, the award of grandparent visitation to the child's step-grandfather, a finding of contempt, and the assessment of various fees and costs. Because the chancellor properly modified custody and found April in contempt but lacked the authority to award grandparent visitation to a step-grandparent, we affirm in part and reverse and render in part. We reverse and remand in part because the chancellor erred, in part, in the assessment of fees and costs.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Andrew[1] was born in August 2009 to April Garner.[2] On November 8, 2010, when Andrew was fifteen months old, April voluntarily relinquished physical custody of Andrew to her brother Jason. At that time, Jason was dating and living with David Smith. Jason and David later married on September 20, 2012.

         ¶3. April was granted supervised visitation with Andrew, by agreement, on October 1, 2012. In January 2013, Andrew began treatment with Dr. Peter Zinkus, a clinical psychologist specializing in behavioral- and emotional-development disorders in children. Dr. Zinkus diagnosed Andrew with separation-anxiety disorder due to the "alternating visitation."

         ¶4. On December 20, 2013, by agreed order, April regained legal and physical custody of Andrew. The order stated that the parties "recognize[d] that in order for [Andrew] to successfully handle his separation anxiety he must maintain a relationship with David and David must have a secure and regular place in the child's life." The agreed order provided David extensive visitation, which April acknowledged was "similar to what a biological parent would get."

         ¶5. At some point in 2013, April began a relationship with Pablo Garcia. Their daughter Allison[3] was born on November 5, 2014.

         ¶6. In November 2014, April withheld visitation with Andrew from David. As a result, David moved to enforce the December 20, 2013 agreed order. In March 2015, the chancellor upheld the agreed order and visitation continued between David and Andrew.

         ¶7. In September 2015, Jason died from complications of HIV.[4]

         ¶8. On September 19, 2016, David filed an "amended petition for emergency custody and to cite [April] for contempt."[5] In the petition, David alleged that based on various events and admissions, April was "unfit to care for [Andrew]." He further alleged that April unilaterally had discontinued Andrew's counseling sessions with Dr. Zinkus, in violation of the December 20, 2013 agreed order. April's mother and stepfather, Judi Garner and Ron Fox, filed a similar petition for custody and joined David's petition. Shortly thereafter, on September 21, 2016, April and Pablo were married.

         ¶9. The chancellor issued a temporary restraining order on September 22, 2016, and granted temporary custody of Andrew to David. April later filed an answer to David, Judi, and Ron's petitions. She further moved for a modification of the December 20, 2013 agreed order and sought to terminate David's visitation rights with Andrew.

         ¶10. Based on the allegations asserted in David's amended petition, the chancellor appointed a guardian ad litem (GAL) on September 29, 2016, to investigate the allegations and to make a recommendation to the court. The chancellor also ordered the parties to submit to a drug test.

         ¶11. Based on the GAL's recommendation, the chancellor entered a temporary order that allowed alternate weekly visitation between April and David, with grandparent visitation to Judi and Ron during the weeks Andrew was with David. On October 13, 2016, April tested positive for cocaine. The GAL later moved for supervision of April's visitation based on her failed drug test and the GAL's belief that April was coaching Andrew. April's visitation with Andrew was supervised until February 3, 2017.

         ¶12. In the fall of 2017, April reported or assisted in reporting two separate allegations of child sexual abuse against David, one on September 11, 2017, and the other on November 14, 2017. Both reports involved similar allegations of bathing, specifically, that David inappropriately touched Andrew while giving him a bath. As a result, Andrew was placed in foster care pending further investigation of the abuse allegations.

         ¶13. Both allegations were separately investigated by the Mississippi Department of Child Protection Services (CPS). The November investigation included a forensic interview with Andrew. At the completion of the investigations, both reports of sexual abuse were found to be unsubstantiated. Specifically, CPS concluded that "there were no inappropriate actions on behalf of David."

         ¶14. A trial in this matter was held on February 22 and 23, 2018. On April 4, 2018, the chancellor issued an opinion in which he found that April had entered into a course of conduct since the entry of the December 20, 2013 agreed order that constituted a material change in circumstances adverse to Andrew's best interests and that made April "mentally and morally" unfit to have custody of Andrew. Following an Albright analysis, [6] the chancellor awarded "full care, custody[, ] and control" of Andrew to David and visitation to April. The chancellor further awarded grandparent visitation to Judi and Ron.

         ¶15. Additionally, the chancellor found that April was in contempt of the December 20, 2013 agreed order due to her unilateral withdrawal of Andrew from Dr. Zinkus's care. The chancellor assessed attorneys' fees and costs against April and denied April's request for attorneys' fees.

         ¶16. An order reflecting the chancellor's rulings was filed April 16, 2018. An amended final order was filed July 6, 2018, that specifically addressed the amount of fees and costs assessed against April.

         ¶17. April moved for reconsideration, which was denied. April now appeals and argues the chancellor erred by: (1) awarding third-party custody to David, (2) awarding grandparent visitation to Ron, (3) holding her in contempt, (4) assessing fees and costs against her, and (5) failing to award her attorneys' fees. Judi and Ron do not contest the award of custody to David. Instead, they join David's arguments on appeal.

         STANDARD OF REVIEW

         ¶18. "The standard of review in child custody cases is quite limited." Johnson v. Gray, 859 So.2d 1006, 1012 (Miss. 2003). "A chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in order for this Court to reverse." Id. (citing Mabus v. Mabus, 847 So.2d 815, 818 (Miss. 2003)). "[F]indings of fact made by a chancellor may not be set aside or disturbed upon appeal if they are supported by substantial, credible evidence." Id. (internal quotation marks omitted) (quoting Marascalco v. Marascalco, 445 So.2d 1380, 1382 (Miss. 1984)).

         DISCUSSION

         I. Whether the chancellor erred by awarding third-party custody to David.

         ¶19. April argues the chancellor erroneously modified and awarded third-party custody to David. "In order for child custody to be modified, a noncustodial party must prove (1) there has been a substantial change in the circumstances affecting the child; (2) the change adversely affects the child[]'s welfare; and (3) a change in custody is in the best interest of the child." Id. (citing Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss. 1997)). "'Above all, in "modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child."'" Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996) (quoting Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993)).

         ¶20. Additionally, because this case involves a custody dispute between a natural parent and a third party, it is important to remember the well-settled presumption regarding the natural-parent. "The law recognizes that parents are the natural guardians of their children, and 'it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.'" Davis v. Vaughn, 126 So.3d 33, 37 (Miss. 2013) (quoting In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 429 (Miss. 2009)). However, the natural-parent presumption may be rebutted by clear and convincing evidence that: "(1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent's conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody." Id. (internal quotation marks omitted) (quoting Smith v. Smith, 97 So.3d 43, 46 (Miss. 2012)). "If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child's best interests." Id. (citing Smith, 97 So.3d at 46). In other words, "[i]n a custody case involving a natural parent and third party, the court must first determine whether through abandonment, desertion, or other acts demonstrating unfitness to raise a child . . ., the natural parent has relinquished his [or her] right to claim the benefit of the natural-parent presumption." Leverock, 23 So.3d at 431. "If the court finds one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis of the Albright factors." Id. (footnote omitted) (citing In re Custody of M.A.G., 859 So.2d 1001, 1004 (Miss. 2003)).

         ¶21. Thus, the first issue this Court must consider is whether April relinquished her right to claim the benefit of the natural-parent presumption. A. Natural-Parent Presumption

         ¶22. The chancellor found that the following conduct by April was detrimental to Andrew's best interests:

1. Addiction to illegal drugs and alcohol;
2. Placing the child in a home fraught with acts of domestic violence and disturbance as a result of her relationship with her now husband, Pablo Garcia, both during this marriage and particularly prior thereto when they resided together without the benefit of marriage;
3. Transient moving of the child from school to school on at least three occasions over [a] three[-]year period of time resulting in the child's progress being underdeveloped based upon his age and grade in school presently [sic];
4. Refusing . . . [to] seek further medical and psychological help for her diagnosis of depression and bipolar disorder resulting in her aggressive, paranoid[, ] and bizarre behavior at times;
5. Cavorting with a known illegal immigrant with full knowledge of his status . . .;
6. Refusal to seek permanent employment though she readily admits she is full[y] capable of doing so, preferring instead to live below the poverty level as indicated [i]n her [Mississippi Uniform Chancery Court Rule] 8.05 financial statement filed as evidence herein; [and]
7. Conduct that evinces a callous regard for the mental well being of the child by refusing to participate in counseling with the minor child and withdrawing the child from the care of his normal counselor, Dr. Peter Zinkus, for no apparent or explained reason, resulting in a setback of his progress in dealing with a separation anxiety disorder as per the testimony of Dr. Zinkus[.]

         ¶23. April asserts the chancellor's "finding of unfitness was improper." We disagree. For the sake of brevity, we separately address only those categories of conduct that are the most applicable to the issues in this case.

         1. April's Addiction to Drugs and Alcohol

         ¶24. April claims "there [is] no evidence that [she] currently has a drug problem." While April denies a current drug addiction, she acknowledges a drug problem before and shortly after this action was filed in September 2016. Indeed, April tested positive for cocaine in October 2016.

         ¶25. Additionally, the record shows that April has a history of alcohol abuse. At trial, multiple witnesses testified regarding April's alcohol use and various incidences of intoxication. The trial testimony indicates that April was intoxicated at Judi's birthday party in June 2016 and again at Andrew's birthday party in August 2016. April's oldest son testified that April was "belligerently drunk" at Andrew's birthday party, which made Andrew "very upset." He further testified that his relationship with his mother was "spotty" due to her "drinking problem."[7]

         ¶26. Moreover, Andrew advised the GAL that he sees April drink, that she drinks all the time, and that she is "crazy" when she drinks. Andrew stated that April refers to alcohol as her "medicine" and "apple juice." The GAL's report notes that April took money out of Andrew's piggy bank in order to purchase beer.

         ¶27. Although April briefly participated in a drug- and alcohol-treatment program through her church, the program ended in December 2017 and is no longer available. April did not seek treatment from another facility and is not currently in treatment for drugs and/or alcohol, despite stating, "once an addict, always an addict." Instead, April asserts that she does not need treatment for her drug and alcohol addictions because she is cured. Specifically, April asserts that "God has healed [her] from all of [her addictions]."

         ¶28. Yet, by her own admission, April continued to consume alcohol until September 2017, just five months before trial. Additionally, April was prescribed narcotics and opiates, including Demerol and Hydrocodone, for an eye injury in June 2017.[8] While April was sober and drug free throughout the course of trial, the trial testimony indicates that April has a repeated pattern of sobriety, followed by relapse.

         ¶29. In Sellers v. Sellers, 638 So.2d 481, 487 (Miss. 1994), a case on which April relies, this Court found that the chancellor erroneously awarded custody of the minor child to her maternal aunt rather than her father. In Sellers, "[t]he only factor weighing against [the father] was his history of marijuana use." Id. at 486. The Court noted that although the father had a history of marijuana use, he "had not used marijuana in over a year . . . ." Id. at 486-87. The father testified that after he was refused custody of his children, "he completely stopped using marijuana." Id. at 487.

         ¶30. Here, unlike in Sellers, no evidence was presented that April has "overcome [her] problem with [drugs and alcohol]." Id. at 487. While the record shows April passed all drug tests after October 2016, she admittedly took prescription narcotics and opiates in 2017. She further admitted to continued alcohol use just before trial. April voluntarily relinquished custody of Andrew when he was fifteen months old due to her drug and alcohol problems. Yet the record reflects that even after she regained custody of Andrew in 2013, April continued to use drugs and to consume alcohol. In fact, April tested positive for cocaine and admittedly consumed alcohol even after David petitioned for custody. Thus, unlike the parent in Sellers, it does not appear that the potential loss of custody, for the second time, is enough to deter April's drug and alcohol use, especially considering her lack of treatment. Additionally, unlike in Sellers, many factors, not just her history of drug and alcohol use, weigh against April.

         2. Domestic-Violence Issues Between April and Pablo

         ¶31. April contends the chancellor's consideration of domestic violence was in error. We disagree.

         ¶32. The record reflects multiple incidences of domestic violence throughout the relationship. For instance, in January 2016, April and Pablo got into an altercation at a bar. After leaving the bar, Pablo rammed his truck into the back of April's vehicle, then backed up and rammed the vehicle again. In February 2016, April locked Pablo out of the house following an altercation. Pablo broke a window in order to get back into the house. In June 2016, April, as well as Andrew and Allison, stayed at David's house due to "issues with Pablo" and "issues with alcohol." April filed a protective order against Pablo in June 2016, but she withdrew the order based on allegations that Pablo had tried to kill her.

         ¶33. April acknowledged that, during 2016, the police were called to her house "for disturbances between [her] and Pablo." Despite these domestic-violence issues, April married Pablo on September 21, 2016, just days after David filed his petition for custody.

         ¶34. April admits that her relationship with Pablo was "volatile" at times but only "before [they] were married." Yet the record shows that the volatile behavior continued after their marriage. In 2017, while April, Pablo, Andrew, and Allison were temporarily living with Pablo's brother, the police were called to the house based on a "disturbance" between April and Pablo. Additionally, in June 2017, April was unable to meet David to exchange visitation due to an eye injury. At first, April claimed she had fallen and injured her eye. However, during her deposition and at trial, April claimed her eye injury occurred when she was hit by a "two-by-four" while visiting Pablo at a job site. April acknowledged that there were no "lines like a two-by-four" around her eye, no bruising around the eye area, and no broken or fractured bones. Instead, only April's eye was bruised and swollen. Despite April's assertion, medical testimony indicated that April's eye injury was inconsistent with being hit by a two-by-four. The medical testimony showed that her eye injury was "more consistent with a round . . . object" such as "a fist" or "a knee."

         ¶35. In addition to the domestic-violence issues between April and Pablo, the record indicates that Pablo would "discipline" Andrew by spanking Andrew on the bottoms of his feet with a "bad belt." Andrew described the "bad belt" as having Mexican dogs on it. Dr. Zinkus found that such spanking was "unnecessary and border[ed] on abusive." He explained that "the reason we spank children, if we do spank children, on the rear end is because it's padded. . . . [I]f you want to inflict pain, you find an area that's not padded and has lots of small bones in it, and you could certainly inflict pain on a child."

         ¶36. On one occasion, April and Andrew were at Judi's house when Andrew complained of his feet hurting. Judi told Andrew to take off his shoes, but April would not allow it. When asked about the incident, April explained that they had just arrived at Judi's house and were not staying long, so there was no point in Andrew's taking off his shoes. She further stated that Andrew's feet were hurting because his shoes were too small. While April admitted that Pablo disciplined Andrew at times, she denied ever seeing Pablo spank Andrew on his feet. But April agreed that she is not always around Pablo when he disciplines Andrew and, as a result, does not know what happens when the discipline occurs outside her presence.

         ¶37. Andrew advised the GAL that April and Pablo fight all the time. Andrew further advised that April scares him and that he has seen April chase Pablo with a knife. During a later meeting with the GAL, Andrew advised that April yelled at him to tell the judge that she never chased Pablo with a knife. While Andrew was adamant that the incident occurred, he stated that he did not want to tell the judge about the incident because "it really hurts when his feet get spanked."

         ¶38. Additionally, the chancellor heard testimony from Andrew's foster parent Anne Dodds. Anne testified that Andrew is "most comfortable with David" and "tells [her] everyday" that "[h]e wants to go home with David." Conversely, Anne testified that Andrew gets "extremely nervous" before his visits with April. Based on her observations of Andrew, Anne believes Andrew loves his mother but is "afraid of her."

         ¶39. In support of her assertion that the chancellor erroneously considered the domestic-violence issues as evidence of her unfitness, April relies on Moody v. Moody, 211 So.2d 842 (Miss. 1968). In Moody, the father "admitted that he had a high temper and did have difficulty in controlling it." Id. at 843. But "there was no evidence that his high temper in any way affected his treatment of his child." Id.

         ¶40. Here, unlike in Moody, April denies any domestic-violence issues with Pablo since their marriage, despite her mysterious eye injury in 2017. She further denies that Pablo hits Andrew on the bottoms of his feet as a form of discipline, despite Andrew's disclosure of such conduct to multiple people. Moreover, unlike in Moody, the record shows that April and Pablo's volatile relationship adversely affects Andrew, who sees them fighting "all the time" and is "scare[d]." As with her drug and alcohol issues, April simply refuses to acknowledge that her relationship with Pablo is unhealthy not only for her but also for her child.

         3. April's Mental Health

         ¶41. April asserts she "did not have significant mental health issues at the time of trial." Yet April admitted that she was diagnosed with depression and bipolar disorder. In August 2016, Andrew and Allison stayed with David at David's house for a few days as a result of April's depressive state. April, who was admittedly depressed, asked David for money to buy a gun. Additionally, in September 2016, April advised CPS that she was battling depression.

         ¶42. Despite these mental-health issues, April was not on any medication and was not receiving treatment. Instead, April claims she does not need medication or treatment because she is "well." As with her drug and alcohol addictions, April claims that God healed her depression and bipolar disorder.

         4. April's Refusal to Participate in Counseling with the Child and Her Withdrawal of the Child ...


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