Rogers v. Kresse

365 So.3d 1047

Heather Kresse ROGERS, Appellant v. Chad KRESSE, Appellee

NO. 2021-CA-00914-COA

Court of Appeals of Mississippi.

June 13, 2023

ATTORNEYS FOR APPELLANT: MATTHEW STEPHEN LOTT, Pascagoula, WILLIAM BRYAN BEDWELL

ATTORNEY FOR APPELLEE: CALVIN D. TAYLOR, Pascagoula

BEFORE BARNES, C.J., McDONALD AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. On July 6, 2021, the Jackson County Chancery Court entered a "Final Judgment Terminating Parental Rights of Heather Marie Kresse." The court found that Heather had "abandoned and deserted her parental role for her minor children" as defined in Mississippi Code Annotated section 93-15-103 (Rev. 2021) and therefore her parental rights should be terminated pursuant to Mississippi Code Annotated section 93-15-119 (Rev. 2021). Heather appealed.

FACTS AND PROCEDURAL HISTORY

¶2. Chad and Heather were married on June 28, 2005. The parties had two children: ECK (born in 2005) and CLK (born in 2012). ¹ Chad filed a complaint for divorce on March 26, 2014, in Jackson County, Mississippi. Ultimately, the parties agreed to a divorce on the ground of irreconcilable differences. A "Judgment of Divorce and Incorporated Agreed Property Settlement Agreement" was entered on August 15, 2014. Pursuant to the judgment of divorce, the parties agreed to share joint legal and physical custody of their minor children. Chad's residence would be considered the children's primary residence as long as he continued living within the children's current school district. The parties alternated weekly periods of custody beginning and ending at 6:00 p.m. on Friday.

¶3. On October 21, 2014, Chad filed a "Complaint for Citation of Contempt and Modification." Chad requested a modification of custody. He alleged that Heather had been arrested for shoplifting and had a pending warrant for her arrest. Chad further alleged that Heather had created an unstable and immoral home environment for the children. As a result of Chad's pleading, an order appointing Anna Sukmann as a guardian ad litem (GAL) was entered on February 3, 2015.

¶4. On February 13, 2015, Chad filed a "Complaint for Emergency Custody." Chad claimed that "[Heather] is living in an environment that is unsafe for the minor children[;] specifically, [Chad] found a pill in the school backpack of the minor child, [ECK]. Said pill is believed to be acetaminophen and oxycodone hydrocoloride 325mg/10mg." Further, Chad alleged:

[Heather] is living in a three (3) bedroom home with seven (7) individuals. The sleeping arrangements at the home are not in the best interest of the children and should be investigated further by the Guardian Ad Litem. The minor child [ECK] is sharing a bed with a twelve (12) year old girl, which is not his sister and the minor child [CLK], shares a bed with [Heather] and her boyfriend, Nicholas Richards. The grandfather of the children and the grandfather's girlfriend are in the 3rd bedroom.

As a result, a temporary order was entered on February 19, 2015. The temporary order modified the custody provisions in the judgment of divorce and awarded Heather supervised visitation every other Saturday from 9:00 a.m. until 6:00 p.m. The court ordered that Heather's visitation be supervised by Heather's boyfriend's mother; however, Heather's boyfriend could not be present during her periods of visitation.

¶5. On May 18, 2015, the GAL filed a letter that stated in part:

It is my opinion that Heather needs more time to "rehabilitate" herself before a full trial on the merits should be had in this case. It has only been three (3) months since the last hearing and she admitted at that time that she was using illegal drugs.

It is my recommendation that, should Heather pass a drug test administered by this Court that she be afforded supervised visitation every other Saturday and Sunday from 9:00 a.m. until 6:00 p.m. with no overnight visitation....

Should Heather not pass her drug screen, I believe that all visitation should stop until she can prove to this Court that she is drug-free.

¶6. On May 21, 2015, the chancery court entered another order granting Heather visitation as the GAL suggested, consisting of supervised visitation every other Saturday and Sunday from 9:00 a.m. until 6:00 p.m. each day with no overnight visitation. The order also stated that Heather would be subject to random drug screens. The order further provided that the GAL could file a motion for a drug test at her discretion, and Heather should be tested within twenty-four hours of the motion.

¶7. On June 23, 2015, Chad filed another complaint for a citation of contempt, alleging that the minor children were left alone with Heather and that the children had been in contact with Heather's boyfriend despite the restrictions contained in the most recent order. On July 25, 2015, the parties executed an agreed judgment that the court entered: Chad would have "paramount physical care, custody[,] and control" of the minor children. The parties would share joint legal custody. Heather was awarded visitation with the minor children every other weekend from 6:00 p.m. on Fridays until 6:00 p.m. on Sundays.

¶8. On October 20, 2016, Chad filed another "Emergency Complaint to Suspend Visitation." Chad alleged that "[Heather was] living in an environment that [was] unsafe for the minor children, specifically, the minor children [were] being exposed to violence and drug abuse by [Heather] and her significant other." Chad also claimed that the minor children were scared to go back to Heather's home. Because of conversations that he had with ECK, Chad was fearful that the children were being verbally abused. Chad requested that Heather be required to take a ten-panel hair follicle drug screen. On November 3, 2016, a temporary order was entered wherein Heather was granted supervised visitation every other Saturday from 1:00 p.m. until 6:00 p.m. to be supervised by Joey or Elizabeth Rogers. Heather was also given the option for a supervised weeknight visitation. A subsequent order was entered on December 1, 2016. The order set a trial date for August 24, 2017, continued the visitation arrangement from the previous order, and stated that "if Chad ... suspect[ed] Heather ... or any other person in [Heather]’s home of using drugs, he [could], at his discretion , stop any and all visitation." (Emphasis added).

¶9. Suspecting that Heather was still using drugs, on August 14, 2017, Chad filed a "Motion for Hair Follicle Drug Screen." Chad alleged that "upon information and belief, [Heather] [was] abusing drugs and [would] knowingly stop using [them] prior to the Court hearing and [would] [use] masking agents to pass urine test[s]." On August 24, 2017, the chancery court entered an order directing Heather to submit to a drug screen on that same day. The result of Heather's August 24, 2017 urine test was negative. On August 25, 2017, an order was entered stating that "an Order for urine testing and hair follicle testing of the mother of the children was ordered. Upon receipt of the hair follicle results, either party may make a motion to put this matter back on the Court's docket." The chancery court subsequently entered an August 29, 2017 order and stated in part:

[T]his Court previously entered an Order directing ... Heather ... to submit to a urine and hair follicle drug screen and also allowed the parties to make a motion to put this matter on the docket following receiving the results of the drug screen. Attached hereto as Exhibit "A" are the results of the drug screen for ... Heather .... Either party may make a motion and put this matter back on the Court's docket .

(Emphasis added). Heather's hair follicle screen was positive for amphetamine and methamphetamine. Neither party made any attempt to place the case back on the docket, and an "Order of Dismissal Without Prejudice for Want of Prosecution" was entered on January 25, 2019. The alleged actions or inactions of both Chad and Heather regarding the exercise of visitation and contact with the minor children between the December 1, 2016 order and 2019 is the primary issue on appeal and will be discussed further in the paragraphs below.

¶10. On January 15, 2020, Heather filed a "Complaint for Visitation and Other Relief." Heather alleged that "[s]he has not been able to visit with her children despite being clean and sober for a long time." Heather claimed that she would "submit to any kind of drug testing to re-establish a relationship with her children."

¶11. On March 2, 2020, Chad filed an answer as well as a "Counter-Complaint for Appointment of a Guardian Ad Litem, Modification and Contempt." Chad alleged that Heather had "failed to provide any support for the minor children and due to the lifestyle that she has lived, by her choice, the children ha[d] no relationship with [her] and it [was] in the children's best interest that [she] not be awarded visitation." Chad requested that a GAL be appointed to conduct a thorough investigation into his allegations. On March 5, 2020, GAL Matthew Pavlov was appointed to investigate the allegations, complete a report, and make recommendations to the court.

¶12. On March 6, 2020, Chad filed a "Complaint for Termination of Parental Rights." Chad alleged that because of her "continued abuse of illegal substances, [Heather] has not had visitation with the minor children in approximately four (4) years." He claimed that "the minor child, ECK, has express[ed] that he does not want any sort of relationship with [Heather] and the minor child CLK does not know [Heather]." On March 6, 2020, the chancery court entered a temporary order which accepted Pavlov's recommendation and ordered that the children should receive counseling to determine whether a bond could be re-established between the children and Heather.

¶13. The trial began on January 19, 2021, and concluded on March 4, 2021. The only witnesses at trial were Chad, Heather, Pavlov, and Heather's therapist Patricia Seymour....