IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-CA-01782-COA
CRYSTAL LAFAYETTE ROBERTS APPELLANT
v.
EZRA CONNER, KRISTINA FARRA AND APPELLEES LUCILLE LAFAYETTE
DATE OF JUDGMENT: 08/12/2019 TRIAL JUDGE: HON. ROBERT Q. WHITWELL COURT FROM WHICH APPEALED: CALHOUN COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: JEFFREY BIRL RIMES SARAH LINDSEY HAMMONS ATTORNEYS FOR APPELLEES: KELLY GUNTER WILLIAMS DAVID L. VALENTINE NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED - 06/15/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., LAWRENCE AND SMITH, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. Randy Lafayette had custody of his daughter, Laura,1 at the time of his death. After
Randy’s death, his close friends Ezra and Kristina Farra Conner (the Conners) filed a
“petition for emergency temporary custody,” which was contested by Laura’s natural mother,
Crystal Lafayette Roberts. Randy’s mother, Lucille Lafayette, joined the Conners in asking
the chancery court to award custody of Laura to the Conners instead of Crystal. The Calhoun
County Chancery Court found that the Conners overcame the natural parent presumption and
1 A pseudonym is used to protect the identity of the minor child. awarded custody of Laura to the Conners. Crystal appeals. Finding no error in the chancery
court’s ruling, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Crystal and Randy were married and had one child, Laura, in December 2007. They
separated in 2014. Initially, Crystal was awarded temporary custody of Laura, and she took
Laura and her half-brother to live in Florida while Randy remained in Mississippi.
¶3. After Crystal and Randy’s separation, Laura began having difficulty in school. When
Crystal moved to Florida, she enrolled Laura in first grade for the 2014-2015 school year.
Laura repeated the first grade in Florida during the 2015-2016 school year. During the 2015-
2016 school year, Laura had twenty-seven unexcused absences, six excused absences, and
thirty-seven tardies. Crystal lived in multiple homes with her two children while residing in
Florida during the separation including the home of her friend, Carmen Williams. At some
point, Crystal lived in an apartment from which she and the children were ultimately evicted.
¶4. Randy sought custody of Laura during the divorce proceedings. Crystal and Randy’s
divorce was finalized on August 26, 2016. Pursuant to the judgment of divorce, Randy was
granted physical custody of Laura, and Crystal was granted certain visitation rights. Crystal
returned to Florida, and Laura moved back to Calhoun County, Mississippi, to live with
Randy.
¶5. After obtaining custody of Laura, Randy enrolled her in second grade for the 2016-
2017 school year; however, she was not allowed to advance to the third grade. Laura
repeated the second grade during the 2017-2018 school year and was promoted to the third
2 grade for the 2018-2019 school year. Halfway through Laura’s third grade year, on January
1, 2019, Randy unexpectedly died. At the time of Randy’s death, Laura was with Crystal.2
¶6. Immediately following Randy’s death, the Conners and Randy’s mother, Lucille
Lafayette, filed a petition for emergency temporary custody and permanent custody. The
Conners requested emergency temporary custody and permanent custody of Laura and that
Crystal be granted visitation rights to be exercised in Mississippi. The Conners alleged that
Crystal was unfit to have physical custody. Further, the Conners alleged that because
Crystal’s new husband, Tim, had a job that required him to travel extensively, and because
Crystal traveled with him, it would be an unstable environment for Laura. Finally, the
Conners alleged that Laura was behind in her academics when Randy obtained custody, but
since she had been in Calhoun City Elementary School, she had been “progressing well and
finally catching up her academics.” The Conners claimed that Laura would be irreparably
harmed if Crystal was allowed to take her outside of Mississippi.
¶7. On the day the petition was filed, the chancery court entered an emergency temporary
custody order without a formal hearing and without notice to Crystal, which granted the
Conners’ request for emergency temporary physical custody of Laura. The chancery court
also set a date for a temporary hearing six days later on January 10, 2019. Crystal was served
with the emergency custody order on January 4, 2019, at Randy’s visitation service, and
Laura was taken by deputies and immediately placed in the Conners’ custody. The parties
2 Pursuant to Randy and Crystal’s 2016 judgment of divorce, Crystal was supposed to return Laura to Randy on December 26, 2018, at the end of her Christmas visitation period with Crystal. However, Crystal still had Laura in Florida on the date that Randy died.
3 entered an agreed order on January 11, 2019, allowing Crystal temporary physical custody
of Laura with the understanding that she would continue to reside in Mississippi. The
Conners were granted visitation every other week. Further, the temporary agreement ordered
that the case would be set for a review hearing at or near the end of the current school year.
¶8. On January 15, 2019, Crystal filed her answer to the Conners’ petition as well as a
counter-petition for custody of Laura. Crystal claimed there were no circumstances present
to overcome the natural parent presumption, and she should retain custody of Laura. She
further asserted that the Conners should not be given any custodial or visitation rights with
Laura and that they should be ordered to pay the attorney’s fees, court costs, and expenses
that she incurred in responding to the emergency petition.
¶9. The trial was set for June 11, 2019. However, on that date, instead of the trial, the
court granted the Conners’ motion to appoint a guardian ad litem (GAL) to “investigate the
matters alleged by the parties, so that the GAL may make a report and recommendation . . .
as to what would be in the best interest of [Laura].” The custody trial was continued until
July 25, 2019.
¶10. Two days prior to trial, Crystal filed a motion for a continuance based on the fact that
the GAL did not visit her home in Florida, and she requested that the trial be continued “until
such time as the GAL may investigate such living arrangements.” Further, she claimed that
she would be “prejudiced if this matter is not continued.” The parties’ attorneys participated
in a telephonic pre-trial hearing on Crystal’s motion, which the chancellor subsequently
denied. The GAL advised the chancery court that “regardless of whether . . . she inspected
4 something in Florida, . . . her opinion would not change in relation to her opinion set forth
in the [GAL] report.” The court ultimately denied Crystal’s motion for continuance.
¶11. The custody trial began on July 25, 2019. At trial, the Conners alleged that they
should receive custody of Laura due to Crystal’s medical neglect, educational neglect, and
Crystal’s insufficient housing in Florida. In addition, several witnesses testified that Crystal
failed to take care of Laura’s personal hygiene and basic needs.
¶12. As to the medical-neglect issue, Crystal admitted that she canceled a surgery that
Laura needed. Prior to his death, Randy scheduled a tonsil and adenoid removal surgery for
Laura. The record is clear that Crystal cancelled the surgery on the day before it was
scheduled to occur. However, Crystal gave differing reasons for her opposition to the
surgery. Crystal first asserted that she was afraid that Laura would have an adverse reaction
to the anesthesia because of a possible inherited medical condition. However, at trial Crystal
testified that she opposed the surgery because Randy failed to consult her before he
scheduled it, despite the fact that they shared joint legal custody of Laura. As of the trial
date, which was approximately six months after Crystal gained custody of Laura pursuant to
the agreed temporary order, the surgery had not been rescheduled, and Laura had not
undergone any testing to assess potential allergies to anesthesia. The record reflects that
Laura continued to have issues with a sore throat and other adverse side effects as a result
of not having the surgery. At trial, the GAL testified that during her investigation she learned
that Laura was still having problems with her throat since she still had her tonsils. During
this litigation process, Crystal allowed Laura’s Mississippi Medicaid coverage to lapse, and
5 she failed to obtain any additional health insurance coverage in either Mississippi or Florida.
Laura was not covered under anyone’s medical insurance at the time of trial. Ultimately, the
GAL opined that Crystal’s decision to forgo Laura’s surgery and failure to secure insurance
constituted medical neglect.
¶13. The Conners also alleged education neglect. After moving to Florida, Crystal enrolled
Laura in the first grade for the 2014-2015 school year. Laura repeated the first grade in
Florida during the 2015-2016 school year. During the 2015-2016 school year, Laura had
twenty-seven unexcused absences, six excused absences, and thirty-seven tardies. The GAL
testified that she reviewed Laura’s school records and found the same amount of absences.
She also testified that Crystal informed her of Laura’s possible dyslexia but stated that she
had not yet been tested. As a result, the GAL determined that Crystal had also educationally
neglected Laura.
¶14. Finally, the Conners alleged that Laura did not have a place to live. At trial, the GAL
testified that Crystal was “unfit for failing to provide care necessary for health, morals, and
well-being” because “Crystal has really no permanent residence that is acceptable for [Laura]
to live.” When she first interviewed Crystal, Crystal stated that she was a resident of Florida.
The GAL asked Crystal what her address was in Mississippi since she was living in
Mississippi at the time, and Crystal responded that she was a Florida resident so it did not
matter. The GAL later discovered that Crystal’s Florida residence, which she shared with
her husband Tim and Laura’s half-brother, had recently incurred significant damage due to
a hurricane and was infested with black mold. While the GAL did not travel to Florida to
6 view the home, it was undisputed at trial that Tim’s mother was the sole owner of the home,
and while she continued to live in the one room that was allegedly unaffected by the mold,
the remainder of the home was uninhabitable for Crystal and her family. At trial, Tim
testified that the home in Florida had black mold due to hurricane damage. Tim and Crystal
both confirmed that they were planning to rent a house when they returned to Florida until
construction was complete on their home; however, neither the court nor the GAL were
provided an address for the rental house.
¶15. As part of her investigation, the GAL visited Crystal’s temporary residence in Paris,
Mississippi. At the time of trial, there were six people living in Crystal’s two-bedroom, one-
bathroom home.3 There was contradicting testimony at trial regarding sleeping arrangements
in the home. Crystal testified that Laura had her own bedroom; however, the GAL’s report
indicated that Laura told the GAL that she slept in a recliner in the living room. Regardless
of the condition of Crystal’s home in Mississippi, Crystal never wavered in her position that
she did not plan to remain in Mississippi and that the family was going to move back to
Florida immediately following the custody trial.4
¶16. At trial there were multiple witnesses who testified that while in Crystal’s care, Laura
was forced to wear dirty clothes, smelled badly, and did not regularly bathe or brush her
3 Crystal’s seventeen-year-old daughter, Katelyn, and her husband were also living with Crystal, Tim, Laura, and Laura’s half-brother at the time of trial. Both Katelyn and Crystal were pregnant at the time. Crystal testified that Katelyn and her husband were only temporarily living with the family. 4 Crystal also told the GAL that she would be a stay-at-home mom if she received custody of Laura.
7 teeth. Ezra testified that Crystal had lost Laura’s toothbrush at one point and, as a result, she
had not brushed her teeth for several days. He also testified that Laura’s clothes smelled sour
when they would get her from Crystal’s home. Laura’s best friend’s mother, Alicia Havens,
testified that when she would hug Laura, she could tell that she had not bathed. According
to Alicia, “[Laura’s] hair would have an odor, her body would have an odor, her clothes
would have an odor . . . [from] a lack of hygiene.” Kristina testified that “there were a few
times where [Laura’s] clothes did smell . . . more of mildew.” Several witnesses also
testified that Crystal had discontinued Laura’s dance lessons and counseling sessions. Alicia
testified that her daughter and Laura attended dance classes together prior to Randy’s death.
According to Alicia, Laura loved dance classes; however, after Randy’s death Crystal did not
continue to take Laura to the classes. The GAL testified that Laura had been seeing a
counselor in Oxford; however, it was her understanding from Laura that Crystal had
discontinued the sessions. The GAL testified that it was her opinion that “counseling would
be great for any child who’s lost a parent for sure. And because of the other upheaval in her
life, certainly it would be in her best interest to continue to be able to talk to someone.”
¶17. At the conclusion of the trial on July 26, 2019, the chancellor rendered a bench
opinion that was incorporated into a judgment entered on August 12, 2019. The judgment
stated in part that the Conners were granted permanent custody of Laura and granted Crystal
visitation. Further, the judgment reapportioned the GAL fees and ordered that the parties
split the remaining balance owed to the GAL and ordered Crystal to reimburse the Conners
for the money that they had already paid the GAL.
8 ¶18. Aggrieved by the judgment, Crystal raises the following issues on appeal: (1) whether
the chancery court erred in denying Crystal’s motion for a continuance; (2) whether the
chancery court applied the proper legal standard in awarding custody to the Conners on an
emergency and permanent basis and whether the court’s findings “rose to the level of
‘unfitness’ as required to remove a child from her natural family”; (3) whether the doctrine
of res judicata barred consideration of the facts from Randy and Crystal’s prior divorce trial
in determining custody in this case; (4) whether the chancery court erred in relying on
uncorroborated hearsay in finding Crystal unfit to have custody of Laura, or rather was its
finding supported by credible evidence; (5) whether the chancery court erred in imposing
geographical restrictions on Crystal’s visitation without making any specific findings as to
the necessity of those restrictions, especially in light of the fact that Crystal’s nuclear family
had a permanent residence in Florida; and (6) whether the chancery court properly
apportioned the GAL fees between Crystal and the Conners.
STANDARD OF REVIEW
¶19. “This Court employs a limited standard of review in child-custody cases and will
‘affirm findings of fact by chancellors when they are supported by substantial evidence
unless the chancellor abused her discretion, was manifestly wrong, clearly erroneous or an
erroneous legal standard was applied.’” Carter v. Carter, 204 So. 3d 747, 756 (¶37) (Miss.
2016) (quoting Borden v. Borden, 167 So. 3d 238, 241 (¶4) (Miss. 2014)). “[T]he polestar
consideration in child custody cases is the best interest and welfare of the child.” Albright
v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). This Court reviews all questions of law de
9 novo. Townsend v. Townsend, 859 So. 2d 370, 372 (¶7) (Miss. 2003).
ANALYSIS
I. Whether the chancery court erred in denying Crystal’s motion for continuance.
¶20. Crystal argues on appeal that the chancery court abused its discretion by denying the
motion for a continuance that she filed two days before the trial. More specifically, Crystal
claims that by failing to require the GAL to visit her home in Florida, the chancery court
limited the scope of the GAL investigation and pertinent evidence was absent at trial.
Further, she argues that even if the home visit in Florida would not have changed the GAL’s
recommendation, it was error for the chancery court to prematurely release the GAL from
her duty to investigate and report all material facts both favorable and unfavorable to her
recommendation.
¶21. Whether a motion for continuance is either granted or denied is within the discretion
of the trial court. Kaiser v. Kaiser, 281 So. 3d 1136, 1144 (¶33) (Miss. Ct. App. 2019). “The
only time this Court will overturn the denial for a continuance is when manifest injustice has
occurred. Prejudice must result from the denial in order to have that decision reversed.”
Henderson v. Henderson, 952 So. 2d 273, 277 (¶7) (Miss. Ct. App. 2006) (citation omitted).
¶22. In this case, the GAL only visited Crystal’s temporary residence in Paris, Mississippi.
Other than Crystal’s Mississippi address, the only address that was given to the GAL was an
address in Marianna, Florida. During her interviews with both Crystal and Tim, the GAL
discovered that the home in Marianna, Florida, was infested with black mold and, as a result
of a hurricane, the home was uninhabitable and not a viable housing option for Crystal’s
10 family. Further, the GAL was informed that the Marianna home was owned by Tim’s
mother, and she was living in the only room that was allegedly not affected by the mold.
Crystal did not give the GAL any other specific details or addresses for alternate housing in
Florida. While Crystal did mention the possibility of renting a home from a friend, she did
not provide the GAL with any information regarding that home, nor did she file a notice of
change of address with the court pursuant to Rule 8.06 of the Uniform Rules of Chancery
Court to indicate that she had obtained an alternate residence.
¶23. Given the uncontested information that the GAL was given during her investigation
regarding Crystal’s Florida residence, and the lack of specific information regarding any
other potential housing options, the GAL advised the chancery court that her custody
recommendation would not have been affected by a visit to Florida to investigate what Tim
and Crystal had already confirmed. Based on the GAL’s representation, the chancery court
denied Crystal’s motion for a continuance. As a result of the denial of the motion for a
continuance, the trial proceeded as scheduled on July 25, 2019. At trial, the condition of the
Florida residence was further corroborated by Tim’s testimony where he admitted that the
home was infested with black mold. Further, Tim testified that purchasing a home was not
an option because he and Crystal could not get approved for a loan. Finally, Crystal testified
again that they had a home they would be renting in Florida while theirs was under
construction; however, there was no other evidence presented at trial to corroborate her
testimony. Given the confirmed information that the GAL was given prior to trial, there was
simply no further evidence to be discovered by an in-home visit to Florida as there was no
11 question as to whether black mold was in the home. It was, and that fact was confirmed.
Crystal provided absolutely no information concerning viable housing options for Laura in
Florida. Further, after receiving the GAL’s report prior to trial and hearing the GAL’s
testimony, Crystal still did not provide any evidence at trial to corroborate her testimony that
she was going to rent a house in Florida.
¶24. In Robinson v. Brown, 58 So. 3d 38, 42 (¶9) (Miss. Ct. App. 2011), Liz Robinson
argued that the chancellor erred in denying her motion for a continuance based on the fact
that her ex-husband Paul Brown did not serve his discovery responses until the morning of
trial. Id. In response, Paul asserted that the attorneys had discussed the discovery responses
on the day prior to trial and that there was nothing unexpected in the responses that would
have been an unfair surprise to Liz. Id. Considering those arguments, this Court held that
the record did not reflect any manifest injustice as a result of the denied continuance, nor any
prejudice to Liz as a result of the denial. Id. at (¶11). As a result, this Court found no error
in the denial of Liz’s motion for continuance. Id.
¶25. Similarly, in this case there was no unfair surprise resulting from the GAL’s failure
to visit Crystal’s Florida residence. All necessary and available information needed for the
GAL’s recommendation was gathered prior to trial and present in her report which was
submitted to all the parties on July 19, 2019, prior to the trial on July 25, 2019. Further, the
information contained in the report concerning the Florida residence was confirmed by Tim’s
trial testimony. Finally, the record does not reflect any prejudice to Crystal as a result of the
denial of the motion for continuance. It is important to note that the GAL’s custody
12 recommendation was not based solely on Crystal’s lack of suitable housing for Laura, but
rather on a combination of factors including medical neglect, educational neglect, lack of
suitable housing, and testimony that Laura had poor hygiene while in Crystal’s care. It is
clear that the GAL’s recommendation would not have changed even if the housing factor was
removed or if the GAL had made the visit to Florida to confirm what Tim admitted and
Crystal never denied.
¶26. Crystal also argues that in failing to require the GAL to investigate her Florida
residence, the chancery court erred by releasing the GAL from her duty to investigate and
report all material facts both favorable and unfavorable to her recommendation. In S.G. v.
D.C., 13 So. 3d 269, 282 (¶57) (Miss. 2009), the Mississippi Supreme Court held that
the [GAL] should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the [GAL] reviewed in order to make the recommendation.
(Emphasis added). In this case, the GAL provided all of the material information that she
reviewed in order to make her recommendation. As previously discussed, there was
absolutely no proof of the existence of any additional material information to be gleaned
from a visit to Crystal’s home in Florida.
¶27. Finally, Crystal failed to offer her own proof of any information could have been
discovered by a visit to her Florida residence. She presented no evidence or testimony either
before or during trial that proved contradictory to the GAL’s original assessment of her
housing situation in Florida. In Scroggins v. Riley, 758 So. 2d 467, 472 (¶19) (Miss. Ct. App.
13 2000), this Court addressed the lack of proof of discoverable evidence by the complaining
party by stating
Mrs. Scroggins was able to present evidence directly to the chancellor on all of the various aspects that she claims the [GAL] should have investigated in more depth. She offers no reason as to why the [GAL] might have been able to develop additional information critical to the chancellor’s decision process that Mrs. Scroggins herself could not obtain.
In this case, Crystal had every opportunity to provide proof of suitable housing directly to the
chancery court and yet she failed to do so. Given the lack of proof of the existence of any
additional material information regarding Crystal’s Florida residence, she suffered no
manifest injustice or prejudice by virtue of the denial of her motion for a continuance.
Therefore, we find no error in the chancery court’s denial of Crystal’s motion for a
continuance.
II. Whether the chancery court applied the proper legal standard in awarding temporary and permanent custody of Laura to the Conners.
¶28. Crystal argues that the chancery court applied the incorrect legal standard in granting
custody to the Conners on an emergency temporary basis and also on a permanent basis.
More specifically, Crystal claims that the chancery court applied a “who is better” standard
and only considered evidence regarding who could better provide for Laura’s needs, rather
than making a determination as to whether the Conners provided sufficient proof to support
their allegation that Crystal was an unfit parent. Further, Crystal claims that the findings of
the chancery court did not “rise to the level of unfitness” required to remove Laura from her
custody.
14 A. Emergency Relief
¶29. For the first time on appeal, Crystal alleges that the chancery court erred in granting
the Conners’ request for emergency temporary custody of Laura by erroneously applying the
“best interest” standard rather than articulating any irreparable harm that could possibly come
to Laura if she remained in Crystal’s interim custody. In doing so, Crystal argues that the
chancery court further erred by failing to give her notice of the emergency hearing.
According to Crystal, the emergency temporary order violated her constitutional right to
parent her child and travel freely. Crystal argues that the chancery court entered its
emergency temporary order not to prevent immediate irreparable harm from coming to Laura
but rather based its findings on the Conners’ assertions that they could provide a more stable
home for Laura. Crystal asserts that the chancery court erred in basing its decision on the
fact Crystal traveled frequently with her husband relative to his job, and because she intended
to move Laura back to Florida.
¶30. Precedent mandates that this Court may not entertain arguments made for the first
time on appeal and a case must be decided on the facts contained in the record and not on
assertions in the briefs. Parker v. Miss. Game & Fish Comm’n, 555 So. 2d 725, 730 (Miss.
1973). Notwithstanding the procedural bar, Crystal’s arguments are without merit. The
Mississippi Rules of Civil Procedure provide for emergency injunctive relief without notice
to the adverse party in certain circumstances such as this. Rule 65(b) states in part:
A temporary restraining order may be granted, without notice to the adverse party or his attorney if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss[,] or damage will result to the applicant before the adverse party or his
15 attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and reasons supporting his claim that notice should not be required. . . .
In case a [TRO] is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and take precedence over all matters except older matters of the same character.
“The granting of a TRO is within the discretion of the trial judge, and we will not disturb the
order absent an abuse of discretion.” C.M. v. R.D.H. Sr., 947 So. 2d 1023, 1027 (¶11) (Miss.
Ct. App. 2007). Further, the law does not protect parental rights to the detriment of the best
interest of the child. Davis v. Vaughn, 126 So. 3d 33, 38 (¶15) (Miss. 2013). “Parental
rights, as is true of other fundamental rights, can be forfeited or taken away, and our law does
recognize some means by which third parties can overcome the law’s preference of natural
parents. . . . The law protects the best interests of the child by its recognition that a natural
parent’s ‘liberty interest in the care, custody, and management of their children and families,’
is not an absolute right.” Id. at 38-39 (¶15) (citation omitted).
¶31. The Conners’ petition for emergency temporary custody specifically laid the
foundation for their argument that irreparable injury would come to Laura if the court denied
their petition. Paragraph seven of their petition summarized the difficulties that Laura
encountered in school beginning with her first-grade year and indicated that she was finally
“catching up” with her academics in her current school in Mississippi. Further, the Conners
asserted that Crystal’s extensive travel with her husband, Tim, prohibited her from providing
a stable environment to Laura. The Conners asserted that it would be detrimental to Laura
if she were uprooted from her known and established life in Mississippi and moved to
16 Florida. Finally, the Conners alleged that they would provide additional reasons at trial as
to Crystal’s unfitness and present proof that the court’s failure to grant their emergency
petition would present a high risk of irreparable harm to Laura.
¶32. Additionally, the Conners’ petition stated their reasons for not serving Crystal with
the emergency petition. They feared that Crystal would “abscond” with Laura if she were
served with normal process. Their petition stated that given Crystal’s history of keeping
Laura from Randy during his periods of custody and preventing Randy’s family from
visiting with Laura after his death and before his funeral, they feared that she would take
Laura to Florida. In fact, they argued that Crystal was withholding custody of Laura at the
time of Randy’s death in violation of the divorce judgment and that Crystal had refused to
allow Laura to visit with her paternal grandmother immediately following Randy’s death or
during the family’s time of grieving.
¶33. The chancellor found that the Conners’ petition for emergency relief satisfied all of
the elements required by Rule 65(b). The petition contained both the allegations of
irreparable harm and the reason that they were asking for relief without notice to Crystal.
The chancery court granted the request for emergency relief without a hearing and the motion
was set for a hearing that was scheduled for six days later. Prior to the hearing, the parties
reached a temporary agreement wherein Crystal maintained temporary custody of Laura. We
find that the chancery court did not abuse its discretion by granting the Conners’ request for
temporary emergency custody without notice.
B. Permanent Relief
17 ¶34. Crystal alleges that the chancery court made the decision to permanently remove
Laura from her custody based on an “erroneous interpretation of the law.” She asserts that
the chancery court awarded custody to the Conners based on their ability to better provide
for Laura rather than making a determination as to whether the Conners provided sufficient
proof to overcome the natural parent presumption.
¶35. “In custody battles between a natural parent and a third party, it is presumed that it is
in the child’s best interest to remain with his or her natural parent.” Smith v. Smith, 97 So.
3d 43, 46 (¶8) (Miss. 2012). However, “the natural parent presumption can be rebutted by
a clear showing 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. at (¶9) (emphasis added).
Absent a showing by clear and convincing evidence that the natural parent has abandoned
the child or is otherwise unfit, the natural parent will prevail in a third-party custody contest.
McCraw v. Buchanan, 10 So. 3d 979, 984 (¶15) (Miss. Ct. App. 2009). A finding of
unfitness is necessary before the court can decide the best interest of the child. Id.
¶36. After the trial in this case on July 26, 2019, the chancery court gave an extensive
bench ruling which was reduced to a written judgment and entered on August 12, 2019. In
his oral ruling, the chancellor was very thorough in his recitation of the law and the legal
standard governing this case. The chancellor quoted multiple cases in his six-page
explanation of the general appropriateness of the applicability of the natural parent
presumption and the proof required to rebut that presumption. In his ruling, the chancellor
18 stated in part:
The evidence presented throughout this matter has not indicated abandonment on the part of [Crystal]. . . . However, there’s been a shocking amount of testimony and other evidence presented to show medical and educational neglect by [Crystal] and that [she] has made poor life decisions affecting her child. . . . Furthermore, [Crystal] is otherwise unfit as she has failed to provide [Laura] with the care that’s necessary for her health, morals and well-being. [Crystal] has no permanent residence that’s appropriate for the child. . . . [Crystal] has demonstrated a lack of thoughtful maturity and responsibility requisite to the proper upbringing of the child, rendering her quite unfit to be granted physical custody of [Laura].
(Emphasis added). The chancery court’s ruling on the record left no doubt it determined that
Crystal was unfit, and based on that determination alone, the burden had been met to
overcome the natural parent presumption. There is no indication from the record that the
chancery court relied on an erroneous “best interest” legal standard in awarding custody to
the Conners. Rather, the court relied on the applicable law and, more specifically, the final
prong of the test set forth in Smith, 97 So. 3d at 46 (¶9), in finding that the natural parent
presumption was rebutted and that Crystal was unfit to have custody of Laura.
¶37. Now it is necessary to evaluate whether the chancery court erred when it made factual
determinations that the natural parent presumption was rebutted due to Crystal being “unfit”
in four respects: (1) educational neglect; (2) medical neglect; (3) failure to provide Laura
with appropriate housing; and (4) Crystal’s inability to provide for Laura’s basic needs.
1. Educational Neglect
¶38. The chancery court based its finding of educational neglect on the evidence and
19 testimony presented at trial that Laura had to repeat both first and second grade;5 that Crystal
failed to get Laura a tutor to assist with her school work; that Crystal failed to have Laura
tested for dyslexia; and that Laura had an excessive number of absences while in Crystal’s
custody prior to the divorce. It was undisputed that Laura was two years behind in school
at the time Randy obtained physical custody of Laura. It was further undisputed that Laura
did not have a tutor to assist her with her school work. Crystal testified that she inquired
about a tutor through Laura’s school; however, the school did not have the resources to
provide a tutor, and Crystal looked no further to obtain tutoring services. Crystal’s husband,
Tim, testified he believed that Laura may have dyslexia based on his personal experience
with the learning disability. Despite the belief that Laura may suffer from dyslexia, Crystal
testified that she had not had Laura tested. Finally, according to the GAL’s report and the
school records, Laura had twenty-seven unexcused absences, six excused absences, and
thirty-seven tardies during the 2015-2016 school year while in Crystal’s custody. At trial,
the GAL testified that she had not reviewed Laura’s most recent attendance record as part
of her investigation but opined that her investigation revealed educational neglect.
2. Medical Neglect
¶39. The chancellor based his finding of medical neglect on the evidence and testimony
presented at trial that Crystal had cancelled Laura’s tonsil and adenoid surgery and failed to
reschedule the surgery in her six-month period of custody prior to trial. Crystal testified at
5 The Conners’ brief states that Laura had to repeat both first and second grade while she was in Crystal’s custody; however, the record indicates that she repeated her first-grade year while in Crystal’s custody and her second-grade year while she was in Randy’s custody.
20 trial that she called the doctor’s office on the day before the scheduled surgery. She advised
the office that she had just been notified of the surgery and that she was concerned that there
could be complications related to the anesthesia due to a hereditary allergy. However, at trial
Crystal testified that she was opposed to Laura having the surgery because Randy had not
consulted with her about it despite the fact that she and Randy had joint legal custody.
Crystal admitted that she had not had Laura tested for any possible allergies associated with
anesthesia since she cancelled the surgery. Finally, Crystal testified that she had not renewed
Laura’s Mississippi Medicaid coverage or obtained medical insurance for Laura in Florida.
On the date of trial, Laura was not covered under any health insurance plan and still had not
had a surgery found necessary by a medical doctor. The GAL confirmed Crystal’s
cancellation of the surgery, her failure to reschedule it, and her failure to fill out paperwork
to ensure that Laura obtained health insurance. Consequently, the GAL opined that her
investigation revealed Crystal’s medical neglect of Laura.
3. Inadequate Housing
¶40. An additional consideration of the chancery court was the fact that Crystal did not
have suitable housing for Laura in Florida in the event that she was granted custody. Crystal
made it very clear to the GAL and the chancery court that she intended to move back to
Florida after the custody trial. Tim and Crystal advised the GAL that their permanent
residence in Florida was uninhabitable after sustaining damage from a hurricane nine months
prior. As a result of the damage, the home was infested with black mold. At trial, Tim
confirmed the presence of black mold in the house in Florida. Crystal and Tim testified that
21 they could possibly rent a home in Florida; however, they had not yet signed a lease and they
provided no additional information about the alleged rental home. Finally, Tim testified that
he was unable to get approval for a loan due to his bad credit. He indicated that purchasing
a home was not an option at the time of trial. Providing a home and a safe and stable
environment for a child is certainly one of the factors included within whether a person is fit
to be a parent. In N.E. v. L.H., 761 So. 2d 956, 967 (¶34) (Miss. Ct. App. 2000), this Court
stated:
[A]ny decision reached with respect to the placement of [a] minor child should be soundly supported by the facts of the case, keeping in mind what is in the best interest of the minor child, when making its findings of fact and conclusions of law. Further inquiry and additional investigation into the child’s special needs, living conditions, family environments and particular circumstances affecting the two parties as pertains to the best interest of the minor child on remand would greatly benefit the lower court in rendering a decision.
(Emphasis added). There is substantial and sufficient proof in the record to support the
chancery court’s factual determination as to a lack of housing for Laura if Crystal was given
permanent custody.
4. Crystal’s Inability to Provide for Laura’s Basic Needs
¶41. Finally, the chancery court considered the evidence and testimony that Crystal failed
to take care of Laura’s personal hygiene and basic needs. At trial, Laura’s best friend’s
mother, Alicia Havens, testified that when she would hug Laura, she could tell that she had
not bathed. According to Alicia, “[Laura’s] hair would have an odor, her body would have
an odor, her clothes would have an odor . . . [from] a lack of hygiene.” Alicia also testified
that Laura loved dance classes before Randy’s death and afterwards Crystal would not take
22 Laura to them. Further, Alicia explained to the court that Crystal would not let Laura be
around her best friend after Randy’s death and the girls could not grieve together due to
Crystal’s actions. Further, the GAL reported that Laura was no longer allowed to attend
counseling sessions with Pat Ward as she had been doing. Crystal testified at trial that she
had taken Laura to one counseling session immediately prior to trial but she provided no
evidence of any additional counseling sessions. Kristina testified at trial that “there were a
few times where [Laura’s] clothes did smell. It was more of mildew.” Crystal’s friend,
Carmen Russell, testified on the behalf of the Conners at trial that Crystal and Laura lived
with her and her family in Florida in 2014 after Crystal’s separation from Randy but prior to
the divorce being final. Carmen testified that during the time that Crystal lived with her, she
took care of Crystal’s kids, cooked for the children and cleaned the house while Crystal was
involved in a romantic relationship with their next-door neighbor.
¶42. In White v. Thompson, 569 So. 2d 1181, 1184 (Miss. 1990), the Mississippi Supreme
Court held that while the chancellor may have erred in relying predominately on White’s
lesbian relationship in finding her unfit, “[t]here was credible evidence . . . that the children
had not been properly supervised, and that they had not been adequately clothed or fed
. . . .” (Emphasis added). Further, the supreme court upheld the chancery court’s ruling that
the paternal grandparents were granted custody instead of the biological parents. Id. at 1185.
¶43. In this case, the chancery court was provided overwhelming evidence of neglect and
evidence of Crystal’s unfitness based on not one or even two areas, but four: (1) educational
neglect, (2) medical neglect, (3) inadequate housing, and (4) failure to provide Laura with
23 basic needs such as hygiene. Therefore, we find no abuse of discretion by the chancery court
in finding that the natural parent presumption was successfully rebutted as a result of Crystal
being determined to be unfit.
III. Whether the chancery court was barred by the doctrine of res judicata from considering the facts from Randy and Crystal’s prior divorce trial in determining custody in this case.
¶44. Crystal asserts the doctrine of res judicata precluded the chancery court from
considering Laura’s 2014-2016 school records and all matters preceding Crystal and Randy’s
divorce judgment in making its latest custody determination. There is no dispute that the
GAL reviewed Laura’s 2014-2016 school records and referenced them in her report. The
chancery court considered the same school records in making its determination of educational
neglect.
¶45. This Court addressed this exact issue in Powell v. Powell, 976 So. 2d 358, 363 (¶21)
(Miss. Ct. App. 2008). Richard Powell argued that the chancellor erred in considering
testimony regarding the family’s pre-divorce relocations at a subsequent trial on his motion
for modification of custody. Id. at (¶19). This Court found “no error in the chancellor’s
limited consideration of the family’s pre-divorce moves.” Id. at (¶22). This court relied on
Smith v. Todd, 464 So. 2d 1155, 1157 (Miss. 1985), where the Mississippi Supreme Court
stated that
[i]n considering modification of child custody, the chancellor must allow full and complete proof with respect to all circumstances and conditions directly or indirectly related to the care and custody of the children, existing at the time of the original divorce decree and at the time of the modification hearing.
¶46. In this case, there were allegations that Crystal neglected Laura’s education. It was
24 undisputed that Laura struggled in school prior to the divorce when she was living with
Crystal. The dispute is not as to the accuracy of that statement but whether the records and
testimony proving that statement should have been allowed into evidence at all. When the
chancellor’s chief concern is to determine the “best interest of the child” when faced with
child custody issues, limiting otherwise relevant evidence only because it was already
considered by a previous court in a previous proceeding could potentially frustrate the very
goal the court is trying to accomplish—determining the best interest of the child.
¶47. Further, even if we found for the sake of argument that the court erred by allowing
the school records prior to the divorce into evidence, there was ample testimony to prove that
Laura was still educationally neglected. For instance, there was testimony at trial that when
Laura was living with Randy, she was doing better in school and beginning to “catch up.”
Further, there was testimony that since the divorce, Crystal failed to provide Laura with a
tutor and she suspected that Laura was dyslexic but neglected to have her tested. Much like
the case in Powell, it was appropriate for the chancery court to consider evidence prior to
Randy and Crystal’s divorce for the limited purpose of determining whether Laura had been
educationally neglected. It is also important to note that the chancery court found that
Crystal was “unfit” based on more than just educational neglect. Therefore, we find no abuse
of discretion by the chancery court in considering Laura’s 2014-2016 school records in
determining that Laura had been educationally neglected in Crystal’s custody.
IV. Whether the chancery court erred in relying on “mistaken facts” and uncorroborated hearsay in finding Crystal unfit to have custody of Laura, or rather was the court’s finding supported by credible evidence.
25 ¶48. Crystal alleges that the chancery court relied on “mistaken facts” and uncorroborated
hearsay in determining that she was unfit to have custody of Laura. Crystal first alleges that
the chancery court relied on the mistaken fact that Laura failed two grades while in Crystal’s
custody in making the determination that she was educationally neglected. Crystal further
alleges that she attempted to get Laura tutoring, helped her with her homework, and
continued to take her to counseling. Crystal also asserts that Laura was not medically
neglected. To the contrary, Crystal argues that she was always attentive to Laura’s medical
needs and that her reasons for canceling Laura’s tonsil and adenoid surgery were justified.
Crystal claims that the lapse in Laura’s healthcare was caused by the unanticipated
continuance of the custody trial and that she intended to apply for healthcare in Florida
immediately following the trial. Finally, Crystal alleges that “the GAL offered no substantive
evidence upon which the Court could rely to adopt her findings,” and that the chancery court
relied on the GAL’s report in its decision to remove Laura from her custody. More
specifically, Crystal alleges that the GAL’s report was replete with “rank hearsay” and
therefore should not be have been used as substantive evidence.
¶49. This Court does not need to “re-examine all of the evidence to see if it agrees with the
chancellor’s ruling; rather, the appellate court’s duty is merely to see if the chancellor’s
ruling is supported by credible evidence.” Hammers v. Hammers, 890 So. 2d 944, 950 (¶14)
(Miss. Ct. App. 2004). In Butler v. Mozingo, 287 So. 3d 980, 983 (¶10) (Miss. Ct. App.
2019), this Court stated that “[s]o long as there is substantial evidence in the record that, if
found credible by the chancellor, would provide support for the chancellor’s decision, this
26 Court may not intercede simply to substitute our collective opinion for that of the
chancellor.” In this case the chancellor relied on the testimony of multiple witnesses and
substantial evidence presented at trial in rendering his opinion on custody.
¶50. In regard to the allegations of educational neglect, Crystal is correct that Laura’s
school records indicated that Laura only repeated one grade while in her custody. However,
this factor was only one of several that led the chancery court to the end result that Laura was
educationally neglected. Crystal testified at trial that she had inquired about a tutor for Laura
in Florida but that tutoring was handled through the school. She could not recall whether a
tutor had been provided for Laura. The testimony that Laura did not have a tutor in
Mississippi was uncontradicted by Crystal. Crystal testified that she helped Laura with her
homework and spelling tests; however, her husband Tim contradicted her testimony. Tim
testified that Crystal traveled frequently with him for his work and for her doctor’s
appointments. Tim stated that if Laura had been in school when he and Crystal were
traveling, Laura was left with Crystal’s mother. Further, Crystal testified that she had taken
Laura to one counseling session immediately prior to the trial date. She did not testify that
she had taken Laura to any additional counseling sessions. Crystal’s testimony is consistent
with the GAL’s report that at the time of her interview with Laura, her counseling sessions
had been discontinued.
¶51. As for the allegations of medical neglect, the chancery court’s decision was based
primarily on the fact that Crystal cancelled Laura’s tonsil and adenoid removal surgery and
failed to have it rescheduled during her six-month period of pre-trial custody. Notably, Laura
27 continued to suffer from the side effects from not having the surgery. Further, Crystal
allowed Laura’s health insurance to lapse prior to trial. Regardless of Crystal’s reasoning
for these two actions, the testimony was undisputed at trial that Laura had not undergone the
recommended surgery and she did not have health insurance.
¶52. Finally, the GAL’s report and recommendation was corroborated by witness testimony
at trial to substantiate the chancery court’s ruling. Tim and Crystal both testified that they
had not secured a suitable residence in Florida in anticipation of their return after trial. There
was contradictory testimony between the GAL report and Crystal’s trial testimony regarding
the sleeping arrangements in Crystal’s home in Mississippi. The GAL report stated that
Laura said she slept in a recliner in the living room, but Crystal testified that Laura had her
own room. Regardless of this discrepancy, Crystal testified that she intended to move back
to Florida after the trial. Yet, in Florida, it was undisputed that black mold infested the only
available home for Crystal to bring Laura to live.
¶53. Alicia Havens testified that Laura often had a bad odor and lacked proper hygiene
while she was in Crystal’s custody. Kristina also testified that Laura smelled like mildew
when she returned from Crystal’s custody. Alicia further testified that Crystal discontinued
Laura’s dance lessons after Randy’s death despite her understanding that they would be free
of charge and Laura loved to attend those lessons. Carmen Williams testified that she had
to care for Laura and her half-brother while Crystal and the kids were living with her in
Florida. Carmen testified that Crystal appeared more interested in her romantic relationship
with the next-door neighbor than taking care of her kids’ needs at that time.
28 ¶54. The chancery court heard testimony from multiple witnesses who described layers of
neglect. There was substantial credible evidence to support the finding that Crystal was unfit
to have custody of Laura. Outside of the mistaken fact that Laura failed just one school
grade while in Crystal’s custody and the contradictory testimony about the sleeping
arrangements in Crystal’s Mississippi home, all of the other allegations of Crystal’s unfitness
contained in the GAL report were substantiated by witness testimony at trial. Notably, much
of the trial testimony came from Crystal herself. Therefore, Crystal’s argument that the
chancery court based its findings on mistaken facts and uncorroborated hearsay is without
merit.
V. Whether the chancery court erred in imposing geographical restrictions on Crystal’s visitation without making any specific findings as to the necessity of those restrictions, especially in light of the fact that Crystal’s nuclear family had a permanent residence in Florida.
¶55. Crystal argues that the chancery court erred in finding that she could only exercise her
visitation of Laura in Mississippi without making any specific findings as to the necessity of
the restriction. Crystal argues that the court further erred in restricting her visitation
considering that Crystal, Tim, and Laura’s siblings were all permanent residents of Florida.
¶56. Chancellors have broad discretion regarding the appropriateness of visitation. Porter
v. Porter, 766 So. 2d 55, 58 (¶13) (Miss. Ct. App. 2000). “Both parents must be allowed an
opportunity to maintain a healthy relationship with their child. Restrictions on visitation can
be placed if they are necessary to avoid harm to the child.” Id. (citation omitted). In Lacey
v. Lacey, 822 So. 2d 1132, 1137 (¶19) (Miss. Ct. App. 2002), this Court stated
29 When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and the child.
“The chancery court has the power to restrict visitation in circumstances which present an
appreciable danger of hazard cognizable in our law. Restrictions placed on visitation are
within the sound discretion of the chancellor.” R.L.N. v. C.P.N., 931 So. 2d 620, 626 (¶24)
(Miss. Ct. App. 2005) (citation omitted).
¶57. In this case, the judgment awarding custody stated in part that Crystal was “granted
reasonable rights of visitation with the minor child, [Laura], in the state of Mississippi, as
may be agreed upon by the parties.” It is clear from the record that Crystal had no suitable
residence to exercise visitation in Florida. Her permanent residence in Florida was infested
with black mold and uninhabitable for Crystal’s family. The record also reflects that
Crystal’s family lived in Mississippi, and in fact, Tim testified that Laura would often stay
with Crystal’s mother when Crystal was out of town. Given the fact that the court was
provided no evidence of suitable housing in Florida, and Crystal has family living in
Mississippi with whom she can stay when exercising visitation, we find no error in the
chancery court’s finding that Crystal’s visitation should be exercised in Mississippi to
prevent any harm from coming to Laura
VI. Whether the chancery court properly apportioned the GAL fees between Crystal and the Conners.
¶58. Crystal argues on appeal that the chancery court erred in its re-apportionment of GAL
fees for three reasons: (1) the chancellor took up the issue of re-assessing GAL fees without
30 notice to Crystal, (2) the GAL fees were not reasonable because she failed to discharge her
duties in her role as the GAL and properly investigate, and (3) the chancellor erred in
identifying Crystal as the “non-prevailing” party.
¶59. “Our rules of procedure treat guardian ad litem fees as court costs to be awarded
against the non-prevailing party.” Miss. Dep’t of Human Servs. v. Murr, 797 So. 2d 818, 821
(¶9) (Miss. 2000) (citing M.R.C.P. 17(d); S.C.R. v. F.W.K., 748 So. 2d 693, 703 (¶52) (Miss.
1999) (not an abuse of discretion to tax non-prevailing party with costs including guardian
ad litem fees); Lowrey v. Forrest Cnty. Bd. of Supervisors, 559 So. 2d 1029, 1031 (Miss.
1990); In re Newsom, 536 So. 2d 1, 2 (Miss. 1988)). Further, Rule 17(d) states in part:
In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for his service rendered in such cause, to be taxed as a part of the cost in such action.
¶60. While Crystal argues that she had no notice that the original GAL deposit was an issue
to be heard on the date of trial, her own answer and counter-petition requested that the court
order the Conners to be responsible for her “reasonable attorney’s fee, court costs, and
expenses incurred in defending against the Counter-Respondent’s Petition.” (Emphasis
added). Because the GAL’s fees are considered court costs, it should come as no surprise
that the issue of all fees, court costs, and expenses would be ruled upon on the trial date. We
find no error in the chancery court’s decision to re-apportion the GAL fees.
CONCLUSION
¶61. After review of the record, we find no error in the chancery court’s decision finding
that the natural parent presumption had been rebutted. We also find that there was substantial
31 evidence for the chancellor’s determination that Crystal was unfit at the time of the trial to
have custody of Laura. Further, we find no error in the chancery court’s re-apportionment
of the GAL fees. Therefore, we affirm the chancery court’s judgment.
¶62. AFFIRMED.
BARNES, C.J., CARLTON, P.J., WESTBROOKS, McDONALD, McCARTY, SMITH AND EMFINGER, JJ., CONCUR. WILSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J., NOT PARTICIPATING.