Crystal Lafayette Roberts v. Ezra Conner, Kristina Farra and Lucille Lafayette

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

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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

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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

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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.

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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

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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

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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

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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

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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.
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Crystal also told the GAL that she would be a stay-at-home mom if she received
custody of Laura.

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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.

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¶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

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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

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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

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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

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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.

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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.

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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

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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

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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

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¶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

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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

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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.

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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

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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

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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

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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

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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.

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¶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

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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

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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.

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¶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

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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.

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