author: COLEMAN, JUSTICE, DICKINSON, PRESIDING JUSTICE,

text:
    Lacy DODD and Charles Dodd v. Dr. Randall HINES, Mississippi Reproductive Medicine, PLLC and Dr. Paul Seago
    NO. 2015-CT-00334-SCT
    Supreme Court of Mississippi.
    09/14/2017
    ATTORNEYS FOR APPELLANTS; SARAH LYNN DICKEY, J. KEITH PEARSON
    ATTORNEYS FOR. APPELLEES: MICHAEL F. MYERS, WHITMAN B. JOHNSON, III, BENJAMIN COLLIER LEWIS, JOHN BURLEY HOWELL, III, WALTER T. JOHNSON
   ON WRIT OF CERTIORARI

COLEMAN, JUSTICE,

FOR THE COURT:

¶ 1. On March 25, 2011, in an effort to increase chances of conception, Lacy Dodd underwent surgery to remove ovarian cysts.and, potentially, one fallopian tube. During the surgery-, Lacy’s physician, Dr. Randall - Hines, discovered that both of Lacy’s ovaries appeared abnormal to the extent that they seemed cancerous. Dr. Hines consulted, intraoperativély, with his cqlleague, Dr. Paul Seago. Dr. Seago con-eluded that both ovaries lacked any appreciable amount of normal tissue and were highly suspicious for malignancy; he recommended that it was in Lacy’s best interest to remove both ovaries. Dr. Hines agreed and removed both ovaries. A biopsy later revealed that Lacy’s ovaries were not cancerous.

¶2. On May 17, 2013, Lacy and her husband, Charles Dodd, filed a pro se complaint against Dr. Hines, Dr. Seago, and Mississippi Reproductive Medicine, PLLC (collectively “the defendants”), claiming that her ovaries were removed without consent. Lacy also alleged that the defendants were negligent in failing to obtain informed consent from the patient and/or her family to proceed with the bilateral salpingo-oophorectomy; failing to wait until a frozen section analysis of the biopsies was available; misdiagnosing Lacy’s condition as malignant; removing Lacy’s ovaries; and other matters to be proven at trial.

■ ¶3. Prior to discovery, the defendants moved for summary' judgment. The trial court entered an order limiting the issue to be argued to consent. The trial court found that Lacy had consented to the removal of her ovaries based on a consent form executed by Lacy prior to the surgery and granted summary judgment in favor of the defendants. Despite the sole issue of consent before the trial court, it entered a final judgment with respect to all of Lacy’s claims alleged in her complaint. On appeal, the Court of Appeals determined that Lacy’s claim was “battery-based”.and held that Lacy did not give express consent for the removal of her ovaries and the consent form did not summarily provide consent to remove her ovaries. Dodd v. Hines, No. 2015-CA-00334-COA, 229 So.3d 124, 2016 WL 4615034, at **5-6 (¶¶24, 27-28) (Miss. Ct. App. Sep. 6, 2016).

¶ 4. We agree with the result reached by the Court of Appeals. Rather than reaching a definitive conclusion on the issue of consent, we hold that there is a genuine issue of material fact precluding summary judgment as to whether Lacy consented to the removal of her ovaries in accordance with the Court’s decisions in Cole v. Wiggins, 487 So.2d 203 (Miss. 1986), and Fox v. Smith, 594 So.2d 596 (Miss. 1992). As more fully explained below, we reverse the trial court’s judgment and remand for further proceedings for reasons different than those of the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 5. In January 2011, Lacy began treatment for fertility issues with Dr. Hines, a physician practicing in. the field of obstetrics and gynecology with a subspeciality in infertility medicine. Lacy had a history of ovarian cysts and pelvic pain, as well as a family history of ovarian, uterine, and cervical cancer. Dr. Hines recommended Lacy undergo a laparoscopic procedure to remove her ovarian cysts as a way to resolve her fertility issues and increase her chances of bringing about a viable pregnancy.

¶ 6. Lacy authorized Dr. Hines to perform a laparoscopy with ovarian cystec-tomy with possible salpingectomy, i.e., removal of ovarian cysts or cysts and possible removal of one of her fallopian tubes. Lacy executed a consent form pri- or to the surgery authorizing the procedure. The consent form also provided, in pertinent part:

I further consent and authorize the performance of such additional surgeries and procedures (whether or not presently unforseen conditions) considered necessary or emergent in the judgment of my doctor or those of the hospital’s medical staff who serve me.

¶ 7. During the laparosocpy, Dr. Hines discovered that Lacy’s ovaries were extremely abnormal to the extent that they appeared cancerous. Considering Lacy’s family history of ovarian cancer, Dr. Hines consulted intraoperatively with Dr. Seago, a physician in the field of gynecology and obstetrics with a subspeciality in gynecological oncology. Dr. Séago examined Lacy’s ovaries and found that both ovaries lacked any appreciable amount of normal ovarian tissue and were highly suspicious for malignancy. Dr. Seago believed the removal of both ovaries to be necessary for her long term health and in her best interest and recommended removing both ovaries. Dr. Hines agreed and removed both ovaries.

¶ 8. After Lacy awoke from surgery, she learned that Dr. Hines had removed both of her ovaries. Lacy’s caregivers sent both ovaries to a pathology lab, and a pathologist determined that her ovaries were not cancerous; rather, she had suffered from “serous cystadenofibroma,” a condition where a benign tumor appears cancerous.

¶ 9. On May 17, 2013, Lacy and Charles ' Dodd filed a complaint against Dr. Hines, Dr. Seago, and Reproductive Medicine, alleging that the ovaries were removed without consent and that the defendants were negligent in failing to obtain her informed consent to proceed with the removal of her ovaries, failing to wait until a biopsy could be completed, misdiagnosing her condition, and removing her ovaries. Lacy claimed that as a direct and proximate result of the negligence of the defendants, she sustained the following damages: the complete inability to conceive her own child; mental and emotional distress; physical pain and suffering; medical expenses, other expenses incurred in travel to other medical facilities, implanting an egg from another female and bearing a child of her husband’s, but not her biological child; and other matters sought to be proven at trial.

¶ 10. Before discovery commenced, Dr. Hines and Reproductive Medicine filed a motion for summary judgment on December 28, 2013. Dr. Hines and Reproductive Medicine mentioned the consent form in their motion but argued that they were entitled to judgment as a matter of law based on the lack of causation and the statute of limitations. Dr. Hines’s affidavit attached to the motion stated that the likelihood Lacy would ever have had .a child from one of her own eggs was practically nonexistent given the near total absence of recognizable ovarian tissue. Dr. Hines stated that neither ovary had sufficiently normal ovarian .tissue to have permitted her ever to bear a child from one of her own eggs. Dr. Hines and Dr. Seago ruled out a biopsy during the surgery because of their strong belief of the presence of ovarian cancer, and obtaining a biopsy potentially could have spread the presumed cancer throughout the pelvis and abdomen. Dr. Hines and Dr. Seago both agreed that they believed it was “medically necessary” and in Lacy’s “best interests” to remove both ovaries.

¶ 11. On February 3, 2014, counsel entered an appearance' on Lacy’s behalf. On April 17, 2014, Lacy filed a motion to hold Dr. Hines’s and Reproductive Medicine’s motion for summary judgment in abeyance pending discovery. Lacy’s counsel. explained that Lacy had proceeded pro, se until she had retained counsel in late January 2014. Lacy’s counsel also explained that the law firm that represented Lacy prior to her filing a complaint had consulted an expert prior to filing suit who believed there was a reasonable basis to initiate a cause of action. Lacy’s counsel stated that a determination had not been made whether to use the consulting expert or to retain a new expert or whether the consulting expert would be willing to serve as a testifying expert in the case.

¶12, On April 26, 2014,'Dr. Hines and Reproductive Medicine filed a rebuttal memorandum in ‘ support of their motion for summary judgment. Dr. Hines and Reproductive Medicine argued that Lacy’s failure to submit‘sworn expert testimony to support her allegations of negligence and causation warranted the entry of summary judgment.

¶13. On May 6, 2014, the trial court entered an agreed order continuing the hearing on the motion for sumriiary judgment as well as Lacy’s motion to hold the motion for summary judgment in abeyance. Oh' May 22, 2014, thé trial court entered another agreed order continuing the hearings. The order provided that the parties had agreed that the motions “save for the causation part” of Dr. Hines’s and Reproductive Medicine’s motion for summary judgment would be heard on September 16, 2014. The September 16 hearing did not occur.

¶ 14. On October 1, 2014, the trial court entered an order holding “[a]ll matters with regard to” Dr. Hines’s and Reproductive Medicine’s motion for summary judgment “in abeyance except regarding the consent issue.” The trial court instructed Dr, -Hines and Reproductive Medicine to file either a supplement to their motion or a separate motion for summary:judgment “specifically addressing the consent issue, which will then be set for hearing.” The trial court ordered Lacy’s motion for- additional time to respond to Dr. Hines’s and Reproductive Medicine’s pending motion for summary judgment to be held in abeyance, while reserving that Lacy be allowed to respond to the supplemental motion on the consent issue. The trial court instructed the parties “to obtain a hearing date on the supplemental; motion for summary judgment on the consent issue once it is filed.”' ....

¶ 15. On October 16,2014, Dr. Hines and Reproductive Medicine filed a supplemental motion for summary judgment arguing that Lacy gave her consent for Dr. Hines to perform any surgery or additional procedure that was considered necessary based on the consent form. Alternatively, Dr. Hines and Reproductive Medicine argued that Lacy was unable to meet the requirements of causation. Specifically, Dr. Hines and Reproductive Medicine argued that Lacy “cannot show that a reasonable patient would have withheld consent had she been informed of the risks of not removing the ovaries, which is required for her to make out a claim for informed consent.” On October 16, 2014, Dr. Seago filed a joinder in Dr. Hines’s and Reproductive Medicine’s supplemental motion for summary judgment. On October 30, 2014, Dr. Seago submitted an affidavit stating that' he believed the' removal of Lacy’s ovaries was necessary for her- long term health and in her best interest.

¶ 16. Lacy filed a response to the supplemental motion pointing out that, although the trial court had held all issues relating to causation in abeyance, the defendants had raised new arguments charging Lacy with the task of proving the requirements of causation for informed consent before the parties had engaged in discovery. “Out of an abundance of caution,” Lacy responded to the defendants’causation arguments.

¶ 17. On November 20, 2014, Lacy submitted an affidavit asserting that,1 prior to consenting to the laparoscopic procedure, she never was informed that removal of ■her ovaries was a known or potential risk. Lacy stated that neither Dr. Hines nor the staff at Reproductive Medicine “mentioned or even hinted that [her] ovaries might be removed during the laparoscopic procedure, either in writing or in [her] pre-surgical consultation with Dr. Hines;” Lacy stated that her ovaries were removed without her consent while she was unconscious and under anesthesia. Lacy stated that had she been informed that Dr. Hines and Dr, Seago believed her ovaries were cancerous and had she been given a choice as to whether to allow the removal of her ovaries, she would have elected to wait for the results of the biopsy of her ovarian tissue and requested a second opinion so she could make a fully informed decision. Lacy emphasized that, even if her ovaries had contained . cancerous tumors, she would not have authorized removal of her ovaries without exploring any and all methods to preserve her ability to bear her own genetic children.

¶ 18. On November 21, 2014, Dr. Hines and Dr. Seago submitted additional affidavits. Dr. Hines stated that the consent form did not require him to conclude the surgery and awaken Lacy to obtain specific consent prior to performing the oopho-rectomy when he and Dr. Seago discovered what appeared to be ovarian cancer. Dr. Seago’s affidavit echoed Dr. Hines’s affidavit, A notice of hearing indicated that the supplemental motion for summary judgment was heard on November 24, 2014, but ho transcript of the hearing is in the record. On February ,6, 2015, the trial court entered an order granting summary judgment in favor of the defendants. The pertinent portion of the trial court’s detailed order is set out below demonstrating the exact basis for the trial court’s decision:

[The trial court] finds that there is no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law on the grounds that-the removal of the plaintiff Lacy Dodd’s ovaries was consented to and authorized by Mrs. Dodd in the consent form which she signed which specifically granted to the operating physicians the authority to perform “such additional surgeries and procedures (whether or not arising from presently unforeseen conditions) considered necessary or emergent in the judgment of my doctor.” Both the operating physician, Dr. Hines, and the assisting physician, Dr; Seago, have stated in Affidavits that the removal of Mrs. Dodd’s ovaries was necessary in their judgment and have explained the thought process behind their conclusion. The Affidavits of Dr. Hines and Dr. Seago were accepted by the [trial c]ourt for the purposes of explaining the subjective basis for the exercise of these doctors’ judgment and were not submitted by the defendants and not accepted by the [trial c]ourt as expert affidavits.- The [trial c]ourt’s ruling is not based upon expert opinion, and the [trial c]ourt specifically notes that this Order is not based upon plaintiffs’ failure to submit an expert affidavit in response to the [defendants’ affidavits.] Rather,, the [trial c]ourt finds that the signed consent form at issue specifically included a provision which allowed the doctors to perform any procedure in their judgment necessary that arose during the surgery: There is no genuine issue of material fact that their judgment was that the procedure was necessary. Consequently, the procedure performed by Dr. Hines and assisted by Dr. Seago was consented to and authorized by Mrs. Dodd, such that she can have no complaint arising from the performance of the procedure. Having concluded that defendants are entitled to judgment as a ' matter of law on this ground, the [trial cjourt does not reach the other grounds for summary judgment raised in various pleadings by the defendants. The [trial cjourt finds that the defendants’ entitlement to judgment as a matter of law on this ground is dispositive of all claims raised in this matter.

The Opinion of the Mississippi Court of Appeals

¶ 19. On appeal, the Court of Appeals framed the sole issue before it, “The issue before us is whether Lacy provided appropriate consent for the removal of her ovaries, eliminating her ability to conceive.” Dodd, 229 So.3d at 127, 2016 WL 4615034, at *2 (¶ 11). The Court of Appeals proceeded by stating, “[tjwo different analyses of consent exist: a consent analysis based on assault and battery, and an informed-consent analysis based on medical negligence.” Id., at 127, at *3 (¶ 12). The Court of Appeals continued: “Mississippi has-not directly addressed when it is appropriate to apply the battery-based analysis or the medical-negligence-based analysis.” Id., at 128, at *2 (¶ 12).

¶ 20. The Court of Appeals cited an unreported Rhode Island case for the proposition that “there are some instances where applying the medical-negligence-based analysis as opposed to battery-based analysis would be ‘illogical.’ ” Dodd, 229 So.3d at 128, 2016 WL 4615034, at *3 (¶ 16) (citing Spaight v. Shah-Hosseini, No. C.A. PC 04-6802 (R.I. Super. Ct. Dec. 30, 2009)). For example, when a procedure is performed that was not considered beforehand, it would make no logical sense to require the plaintiff to prove the doctor had a duty to disclose a material or known risk of an uncontemplated procedure. Id. The Court of Appeals looked to a Louisiana case for the proposition that a “battery-based” analysis is appropriate when a procedure completely lacked consent. Id. at 128, at *4 (¶ 17) (citing Pizzalotto v. Wilson, 437 So.2d 859, 862-64 (La. 1983)). In Pizzalotto, the Louisiana court applied the battery-based analysis because the removal of the patient’s ovary and other reproductive organs logically could not be considered a risk of the laparoscopic procedure that was disclosed. Id.

¶21. Proceeding under the “battery-based analysis,” the Court of Appeals turned to the consent form signed by Lacy and applied Barner v. Gorman, 605 So.2d 805 (Miss. 1992). In applying Earner, it held that Lacy’s consent form was not conclusive evidence of her consent to remove both ovaries. Dodd, 229 So.3d at 129-30, 2016 WL 4615034, at *5 (¶¶ 22-23). Applying a New Jersey case, the Court of Appeals determined that the removal of Lacy’s ovaries was “substantially different” from the procedure Lacy had authorized. Id. at 130, at *5 (¶ 24) (citing Samoilov v. Raz, 222 N.J.Super. 108, 536 A.2d 275, 280-81 (Ct. App. Div. 1987)). The Court of Appeals went further and determined that the removal of Lacy’s ovaries was not only substantially different from the authorized procedure, but it was “antithetical to the purpose of the surgery.” Dodd, 229 So.3d at 130, 2016 WL 4615034, at *5 (¶ 24). The Court of Appeals concluded: “Clearly, Lacy did not expressly authorize the removal of her ovaries.” Id. The Court of Appeals ultimately held:

[W]e find that, under the battery-based analysis of consent, Lacy did not give express consent for the removal of her ovaries and that the consent form signed by Lacy did not summarily provide consent to remove her ovaries. As the circuit court’s decision did not reach whether or not the .removal of her ovaries became necessary or emergent during the medical procedure that was consented to by Lacy, nor did the judgment address any other analysis of consent pertinent to theories of medical liability, we reverse and remand.

Id. 229 So.3d at 131, at *6 (¶ 27).

¶ 22. After the Court of Appeals denied their motions for rehearing, the defendants filed petitions for writ of certiorari. Dr. Seago argues that the Court of Appeals erred by holding Lacy did not consent to removal of her ovaries when she entered the consent agreement and by holding summary judgment was improper on Lacy’s medical negligence claim. Dr. Seago argues the Court of Appeals’ refusal to enforce the consent agreement is a significant departure from the Court’s interpretation and enforcement of written agreements. Dr. Seago also argues that only the Legislature has the power to make public policy, and the Court of Ap-. peals decision- violates the separation of powers provision of the Mississippi Constitution. Dr. Seago then proceeds to argue that the “public policy decreed by the [Court of Appeals] is a poor one.”

¶ 23.. Dr. Hines and Reproductive Medicine argue that the Court of Appeals interfered with the patient/physician relationship by rewriting the consent form, shifted the burden of proof to the defendants, and hopelessly confused battery claims with informed consent claims. Dr. Hines and Reproductive Medicine also argue that the Court of Appeals decision will have a profound impact on the practice of medicine-, to the detriment of the patient.

STANDARD OF REVIEW

¶24. “When evaluating a trial court’s grant or denial of summary judgment, this Court applies a de novo standard of review.” City of Tupelo v. Patterson, 208 So.3d 556, 561 (¶ 15) (Miss. 2017). Summary judgment shall be rendered if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. (56)(c). “The evidence must be viewed in the light most favorable to the party against whom the- motion has been made, and the moving party bears the-burden of demonstrating that no genuine issue of fact exists.” Young v. Meacham, 999 So.2d 368, 371 (¶ 13) (Miss. 2008). “[I]f there is doubt as to whether or not a fact issue exists, it should be resolved in favor of the non-moving party.” Id.

DISCUSSION

Whether the trial court erred by granting summary judgment based solely on the executed consent form.

¶25. Most importantly, the only issue before the trial court and Court of Appeals was whether Lacy consented to the removal of her ovaries. At the present juncture, any analysis as to causation or elements of Lacy’s claims that require expert testimony is premature and not properly before the Court. No discovery has occurred; and the trial court specifically had held all other issues, including issues as to causation, in abeyance. Moreover, the trial court had-refused to accept any expert testimony and expressly stated in its order that it did not accept Dr. Hineses and Dr. Seago’s affidavits as expert affidavits. Based on the record before the Court; it is unnecessary to look to other jurisdictions for guidance.

¶26. The case of Fox v. Smith, 594 So.2d 596 (Miss. 1992), is factually similar to the case sub judice.' Lana Fox filed a complaint against Dr. Perrin Smith, alleging that Dr. Smith had committed a battery to her person by the unauthorized removal of her intrauterine device (IUD). Id. at 596. Fox sought treatment from Dr. Smith for severe low abdominal pain. Id. at 597. Dr. Smith’ recommended laparo-scopic surgery to determine a diagnosis. Id. According to Dr. Smith, the two discussed possible removal of her IUD as part of the surgery. Id. at 601. Conversely, Fox testified that they did not discuss removing the IUD during pre-op appointments and that she insisted immediately prior to the surgery that he not remove the device. Id. at 599. During surgery, Dr. Smith discovered that Fox’s IUD had broken into several pieces. Id. at 602. Dr. Smith testified that the fragmented device would present various health risks to Fox and that he removed the device in good' medical judgment. Id. at 602-03. The trial court granted a directed verdict in favor of the physician. Id. at 597.

¶ 27. Even though the Fox Court stated that Fox had brought’ a battery claim against Dr. Smith, the Court discussed the informed > consent doctrine -recognized in Mississippi. The Court explained- “Mississippi follows the fundamental notion that the patient is master of his/her own body.” Fox v. Smith, 594 So.2d 596, 604 (Miss. 1992). “The foundation for the consent-requirement applicable to medical practitioners is the tort law of assault and battery— the legal doctrine protecting the right of each individual to be touched only when and in the way authorized by that individual.” Id. “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a-surgeon who performs an operation without his patient’s consent commits an assault for which he is. liable for damages,” Id. The Court continued:

Medical and 'surgical procedures that involve touching a patient’s person, even the simplest manipulation of a limb, must be properly authorized or the person performing the procedures will be subject to an action for battery. The obvious corollary is that, absent special 'circumstances, a competent individual has a right to refuse to authorize a procedure, whether the refusal is grounded on doubt that the contemplated procedure will be successful, concern about probable risks or consequences, lack of = confidence in the physician recommending the procedure, religious belief, or mere whim. . -
The informed consent rule has been referred to as the “bedrock of this state’s respect for the individual’s right to be free from unwanted bodily intrusions no matter how well intentioned.” In re Brown, 478 So.2d 1033, 1040 (Miss. 1985). In Brown, we noted that the fundamental right to be left alone is rooted in the. right to privacy recognized by the common law of this state and Article 3, § 32 of the Mississippi Constitution of 1890. In re Brown, 478 So.2d 1033, 1040 (Miss. 1985), citing Deaton v. Delta Democrat Publishing Company, 326 So.2d 471, 473 (Miss. 1976).

Fox, 594 So.2d at 604.

¶ 28. After explaining the origin of the informed consent rule, the Fox Court stated the general rule: “Concisely stated in one sentence, no physician may perform any procedure on a patient no'matter how slight or well intentioned without that patient’s informed consent, and violation of this rule constitutes a battery[.]” Id. ,

¶29. The Fox Court then squarely framed the sole issue before it: “The only issue in this case is consent, or not, to remove the IUD. In this regard, this case presented the classic jury question,, Who should the jury believe, Mrs. Pox or Dr. Smith? The stories which both parties told at trial cannot be reconciled.” Id. at 605.

¶30. Dr. Smith rested his entire argument on one -paragraph in the consent form signed by Pox, purportedly authorizing him to remove the IUD in the exercise of sound medical judgment: .

I recognize that, during the course of the operation, - unforeseen conditions may necessitate additional or different procedures than those set forth above. I, therefore, further authorize and request that the above named surgeon, his assistants or his designees perform such procedures as are, in his professional judgment, necessary and desirable, including but not limited to procedures involving pathology and radiology.

Fox, 594 So.2d at 605.

¶ 31. Dr. Smith urged the Court to follow cases from other jurisdictions for the proposition that no battery was committed when a similar provision existed in a hospital consent form, but the Court rejected Dr. Smith’s argument.' Id. The Court reversed the judgment of directed verdict for two reasons: (1) it refused to ignore Fox’s testimony that she specifically forbade the doctor from removing her IUD; and (2) it was unclear, if removal of the device was a necessary and unforeseen procedure when the patient consented to a laparoscopy. Id. at 605-06.

¶ 32. Like Fox, the sole issue before the Court is whether Lacy consented, or not, to the removal of both ovaries.’ Fox is instructive in determining whether the consent form signed by Lacy is a basis for summary judgment. In Fox, the Court rejected the physician’s argument that a patient consented to a different'procedure by signing a consent form containing virtually the identical language as the form in the present case. Id. at 606. Moreover, as in Fox, it is unclear that the removal of her ovaries was necessary or emergent when she consented to a laparoscopy, cystecto-my,' and the possible removal of one fallopian tube. Notably, the consent form was not''dispositive even though it simply required that the additional or different procedures be considered necessary and desirable based on thé subjéctive belief of the treating physician.

¶ 33. 'The case mb judice is distinguishable from Fox in that Lacy does not assert she expressly told Dr. Hines not' to remove her ovaries prior to surgery. Pox testified that she expressly forbade'the physiciaia from performing the procedure. Id. at 599. However, ás the Court of Appeals reasoned, the result of the 'surgery—removal of Lacy’s ovaries—was “antithetical” to the purpose of the surgery—to determine the cause of Lacy’s infertility. Dodd, 229 So.3d at 130, 2016 WL 4615034, at *5 (¶ 24). The antithetical nature of Lacy’s surgery is comparable to the express forbiddance present in Por..

¶ 34. The Court’s decision in the likewise factually similar Cole v. Wiggins, 487 So.2d 203 (Miss. 1986), ultimately controls the case sub judice because it dealt with a similarly developed record on 'appeal. James A. Cole suffered a severe injury to his left index finger at work. Id. at 204. Cole was taken to the hospital, where he was treated by orthopedic surgeon Dr. Christopher E. Wiggins. Id. Cole signed two authorization forms and was taken into surgery in which his entire left index finger was amputated. Id. Cole filed a complaint against Dr. Wiggins, alleging that the actions taken- by Dr. Wiggins in amputating his entire finger constituted medical malpractice. Id. Cole asserted two theories of liability: “(1) he was never informed that his entire finger might be amputated and (2) that he never gave his informed consent thereto.” Id.

¶35. Cole claimed “that Dr. Wiggins informed him that if the partially severed portion of his finger could not be salvaged, the finger would be amputated at the middle joint.” Id. “Conversely, Dr. Wiggins contended] Mr. Cole was completely informed of the possible results of the surgery[,]” and “it was impossible to salvage the severed portion of the finger and, in order to avoid future pain and complication, it was necessary to amputate the entire finger.” Id. The trial court entered a protective order preventing Cole from deposing or cross examining Dr. Wiggins because Cole had not retained an expert witness to substantiate his claims. Id. at 205. The trial court granted summary judgment in favor of Dr. Wiggins prior to Cole retaining an expert witness. Id. at 204.

¶36. On appeal, the Court took issue with the trial court’s entry of a protective order to prevent Dr. Wiggins from being annoyed. Id. at 205-06. The Court stated that, “[overlooked in that ruling was the fact that [Cole] was also alleging Dr. Wiggins never received [Cole’s] informed consent to amputate his entire finger.” Id. at 205. The Court acknowledged that “[a] physician is under a duty under some circumstances to warn his patient of the known risks of proposed treatment or surgery, so that the patient will be in a position to make an intelligent decision as to whether he will submit to such treatment or surgery.” Id. Moreover, ■ “[m]atters which are within the common knowledge of laymen are exceptions to the rule that expert medical testimony is required.” Id. The Court held that “[n]o expert testimony was required to establish what communication transpired between Mr. Cole and Dr. Wiggins.” Id. at 206.

¶37. In addressing the trial court’s grant of summary judgment in favor of Dr. Wiggins, the Court again emphasized that “expert medical testimony is needed to establish negligence in a malpractice action[;] [h]owever, no expert testimony is needed to prove what communications transpired between the doctor and the patient. Id. at 206. The Court continued:

The absence of an expert witness to testify that Dr. Wiggins was negligent clearly led to the summary judgment on the negligence question. But what about the question of informed consent? In his affidavit, Dr. Wiggins stated he fully informed the plaintiff of the procedures to be performed and that the. plaintiff fully understood them.. In contrast, the plaintiff stated in his affidavit that amputation of the entire left index finger was never mentioned to him and that he never consented thereto. Mississippi case law holds, “Issues of fact sufficient to require denial of. a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says just the opposite.” Those facts are exactly what is presented in the instant case.

Id. at 207 (internal citations omitted).

¶ 38. The Court also noted: “Additionally, the plaintiff alleges he did not give an informed consent, although the record shows his signature.” Id. Notwithstanding the signed consent form, the Court held that the trial court erred by granting summary judgment because Dr. Wiggins swore to one version of the matter and Cole swore to just the opposite. Id. As a result, the Court reversed and remanded for further proceedings, Id.

¶ 39. As in Fox, the signed consent form was not dispositive in Cole. Moreover, Cole brought separate theories of liability, i.e, that he was never informed his entire finger might be amputated- and that he never gave his informed consent thereto. Cole, 487 So.2d at 204. The Court also said that Cole had stated two issues in his complaint: (1) whether the doctor received the informed consent of the patient for the entire procedure performed and (2) whether the doctor was negligent in performing the procedures.

¶ 40. Like Cole, Lacy brought separate theories of liability. According to Lacy’s complaint, she alleged that she never’ gave consent for the removal of her ovaries and that Dr. Hines removed both of her ovaries without her-consent. Additionally, Lacy alleged that the defendants were negligent in the following wáys: failing to obtain her informed consent; failing to wait until a frozen section analysis of biopsies was available; misdiagnosing her condition; and removing her ovaries.

¶ 41. Pursuant to the Court’s decisions in Fox and Cole, we reverse and remand for further proceedings as to Lacy’s lack of informed consent claim because a genuine issue of material fact prevents summary judgment on the issue. Moreover, as in Cole, any analysis relating to the defendants’ alleged negligence is premature because the trial court entered an order limiting the issue before it to consent and did not accept expert testimony.

¶ 42. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS REVERSED AND REMANDED.

RANDOLPH, P.J., KITCHENS, KING, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. WALLER, C.J., . NOT PARTICIPATING.

DICKINSON, PRESIDING JUSTICE,

CONCURRING IN RESULT ONLY:

. ¶ 43. The circuit judge granted summary judgment for one reason: he found that Lacy gave informed consent for the removal of her ovaries. The majority reverses, finding that a material issue of fact exists as to whether Lacy gave that consent. I disagree.

¶ 44. The facts which gave rise to a triable issue of fact on consent in Fox v. Smith—the authority upon which the majority primarily relies—are -not present here. That case concerned a patient who claimed her doctor removed her IUD without consent. There, the patient testified she expressly told her doctor not to remove the IUD. And, while that patient signed a form consenting to other necessary medical procedures similar to the one at issue here, she also testified that she questioned a nurse about that provision and was told it only consented to lifesaving measures employed in response to an emergency during the surgery.

¶ 45. Lacy has put forth no similar evidence. She does not dispute that she signed the consent form authorizing “such additional surgeries and procedures (whether or not presently unforseen conditions) considered necessary or emergent in the judgment of my doctor or those of the hospital’s medical staff who serve me.” She does not contend anyone misled her as to the meaning of this provision. And she does not contend she forbade the removal of her ovaries.

¶ 46. Rather, Lacy argues only that she did not give informed consent because no one told her that her ovaries might be removed. But the consent’s plain, unambiguous terms included procedures based on “unforseen conditions.” So I do not agree a material issue of fact exists as to whether Lacy consented to procedures—like 'the removal of her ovaries—deemed necessary by her physicians.

¶ 47. That said, I agree we must reverse the grant of summary judgment. Lacy’s claim is not simply lack of consent. Instead, she alleges medical malpractice in her physicians’ judgment that it was necessary to remove her ovaries. While Lacy consented to the performance of procedures deemed necessary by her physicians, she did not waive her claim the physicians negligently concluded the procedure was necessary. ■■

      . Since the surgery, Lacy has carried and delivered two children through donor eggs and her husband’s sperm.' Charles Dodd claimed that he sustained loss of consortium, medical, expenses, and other expenses incurred in having Lacy bear a child conceived with an egg from another woman, and loss of the ability to have a child with his wife.

      . The trial court did not reach the causation or statute of limitations arguments in its eventual order granting summary judgment.

      . Dr. Seago also joined in Dr. Hines's and Reproductive Medicine's pending motion for summary judgment that had been held in abeyance.

      . Fox v. Smith, 594 So.2d 596 (Miss. 1992).

      . Id. at 605.

        .Id. at 600.


source: Caselaw Access Project

author: WALLER, CHIEF JUSTICE, RANDOLPH, PRESIDING JUSTICE, KITCHENS, PRESIDING JUSTICE,

license: Public Domain

text:
    Dale Patrick MILLER v. Jessica Dawn SMITH
    NO. 2015-CT-00330-SCT
    Supreme Court of Mississippi.
    10/26/2017

      ATTORNEYS FOR APPELLANT: JERRY WESLEY HISAW, WILLIAM BOLTON SEALE
    ATTORNEY FOR APPELLEE: CHARLES E. HODUM
   ON WRIT OF CERTIORARI

WALLER, CHIEF JUSTICE,

FOR THE COURT:

¶ 1. Dale Patrick Miller and Jessica Dawn Smith agreed to an irreconcilable-differences divorce, leaving to the Tate County Chancery Court issues of custody, care, and visitation of two children, Smitty and Morgan. Miss. Code Ann. § 93-5-2(3) (Rev. 2013). As to Smitty, the chancellor terminated Miller’s parental rights because Miller was not the biological father of Smitty nor did he stand in loco parentis to Smitty. As to Morgan—the biological child of Miller and Smith—the chancellor awarded custody to Smith.

¶ 2. The Court of Appeals affirmed the chancellor’s judgments. On petition for certiorari to this Court, Miller raises two issues: (1) whether the trial court erred in terminating his parental rights to Smitty; and (2) whether his right to confrontation under the Sixth Amendment to the U.S. Constitution and his right to be present under Article 3, Section 25 of the Mississippi Constitution were violated when the chancellor removed Miller from the courtroom during the testimony of Smith’s oldest daughter of a previous relationship. We affirm, yet with respect to the second issue, we find it was error, but harmless, for the chancellor to remove Miller from the courtroom.

FACTS AND PROCEDURAL HISTORY

¶ 3. Dale Miller and Jessica Smith began a romantic relationship in 1998. Smith had a daughter, Kristen, from a previous relationship. In 2004, Smith had a son, Smitty. Four months after Smitty’s birth, Miller went to prison for eighteen months. When Miller was released from prison, Smith was in rehabilitation. Smith’s children were under the temporary custody of Smith’s mother, Barbara Keller (“Smith’s mother”), so Miller stayed with Smith’s mother and the children. Miller and Smith married in January 2009. A year later, the couple had a daughter, Morgan. A month after Morgan was born, a Tennessee juvenile court returned custody of Kristen and Smitty to Smith.

¶ 4. In August 2010, Miller and Smith separated after Smith accused Miller of touching Kristen inappropriately. Smith reported the incident to the sheriffs department and to the Mississippi Department of Human Services (MDHS). MDHS found no evidence to prove “fondling or touching for sexual or lustful purposes” but restricted Miller to supervised visitation -with the children.

¶ 5. Smith went to prison in 2012 for violating the terms of her probation stemming from her 2002 guilty pleas to forgery and three counts of theft in Tennessee. As a result, the children went to live with Smith’s mother. Miller had no contact with the children while Smith was in prison, nor did he support them financially.

¶ 6. In November 2012, Miller filed for divorce and sought custody of Smitty and Morgan. Smith’s parents moved to intervene and sought DNA testing. Both motions were granted, and the testing showed Miller as the biological father of Morgan only.

¶7. Miller thereafter amended his divorce complaint and claimed he stood in loco parentis to Smitty. Miller said he accepted and acknowledged paternity by signing the birth certificate and raising Smitty as his own. No one else claimed paternity, and Smitty knew no other father. Smith answered by accusing Miller of “cruel [and] unusual demeaning immoral abuse.” She charged that she removed Miller from their home after-he sexually assaulted Kristen.

¶ 8. Based on the abuse allegations, the chancellor appointed a guardian ad litem. In her preliminary report, the guardian ad litem recommended that Miller-have custody of Morgan but made no recommendation as to Smitty. In September 2013, the chancellor entered a temporary order (1) requiring Smitty and Morgan to remain with Smith’s parents; (2) granting Miller •visitation; and (3) ordering him to pay monthly child support for both children.

¶ 9. Before trial, the couple stipulated to an irreconcilable-differences divorce. Thus, the trial proceeded on custody, visitation, child support, health insurance, tax deductions, and college expenses for Smitty,and Morgan.

¶ 10. During trial, Kristen testified that Miller had sexually abused her. Because Kristen was seventeen years old at the time, and because of the sensitive nature of her testimony, the chancellor removed Miller from the courtroom. Miller’s attorney objected to his removal because the chancellor did not provide Miller with any method to observe Kristen’s testimony. The chancellor overruled the objection, and Miller’s attorney remained'in the courtroom. ■

¶ 11. After the trial, the chancery court awarded Smith sole physical and legal custody of Smitty and Morgan. It found that all but three of the Albright factors favored Smith. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). The chancery court also terminated Miller’s -parental rights as to Smitty. According to the chancellor, “Miller is not the biological father of [Smitty], [he] has not established a prima facie case that he stands in loco parentis with [Smitty], and has not established that he had a relationship with [Smitty].” Because of the chancery court’s “extreme concern” that Miller -had “acted inappropriately” with Kristen, it granted him only supervised visitation with Morgan. • '

¶ 12. Miller appealed, and the case was assigned to the Court of Appeals. On November 14, 2016, the chancery court, in a different proceeding from the underlying appeal, awarded Miller custody of Morgan. Eight days later, the Court of Appeals rendered its decision in Miller’s case. After the ruling by the Court of Appeals, Miller filed motions for rehearing and extraordinary relief to supplement the record with a copy of the custody order from November 14, 2016. The Court of Appeals denied supplementation because the motion was filed ten days after its decision was handed down.

, -¶ 13. Before this Court, Miller challenges the chancery court’s and the Court of Appeals’ judgments regarding Smitty. He raises two issues;

(1) whether the chancellor abused his discretion in terminating Miller’s parental rights to Smitty;
(2) whether Miller’s exclusion from the courtroom during Kristen’s testimony warrants reversal.

STANDARD OF REVIEW

¶ 14. “This Court’s scope of review in domestic relations matters is limited.” Chesney v. Chesney, 849 So.2d 860, 862 (¶ 8) (Miss. 2002) (citing Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss. 2000)). “[A]bsent an abuse of discretion, we will uphold the decision of the chancellor.” Hollon v. Hollon, 784 So.2d 943, 946 (¶ 11) (Miss. 2001). In other words, “[a] chancellor’s findings of fact will only be reversed when the record .possesses no credible evidence to support them.” Collins v. Collins, 112 So.3d 428, 433 (¶ 16) (Miss. 2013). “However, the chancery court’s interpretation and application of the law is reviewed under a de noyo standard.” In re Guardianship of Savell, 876 So.2d 308, 312 (¶ 4) (Miss. 2004) (citations omitted).

DISCUSSION

I. Whether the chancellor abused his discretion in terminating Miller’s parental rights to Smitty.

¶ 16. Miller asserts that the chancellor erred in determining he did not stand in loco parentis to Smitty and, based on that determination, erred in terminating his parental rights. In loco par-entis means “in the place of a parent.” Farve v. Medders, 241 Miss. 76, 81, 128 So.2d 877, 879 (1961). It is defined as “one who has assumed the status and obligations of a parent without a formal adoption.” Id. More specifically, “[a]ny person who takes a child of another into his home and treats it as a member of his family,' providing parental supervision, support and education, as if it were his own child is said to stand [in loco parentis].” Logan v. Logan, 730 So.2d 1124, 1126 (¶8) (Miss. 1998) (citation omitted). Whether in loco parentis status exists is “a matter of intention and of fact to be deduced from the circumstances of the particular case.” Farve, 128 So.2d at 879 (citation omitted).

¶ 16. The chancellor, sitting as the finder-of-fact, determined that- the circumstances of this case failed to confer in loco parentis status on Miller. And the Court of Appeals found substantial evidence within the record to support the chancellor’s decision. Miller v. Smith, 229 So.3d 148, 152-53, 2016 WL 6876509, at *3 (¶ 17) (Miss. Ct. App. Nov. 22, 2016). First, when Smitty was only a few months old, Miller was sentenced to prison for eighteen - months. After prison, Miller did not remain a constant in Smitty’s life. According to Smith, Miller provided no financial assistance to Smitty before their marriage. Miller also admitted he did not visit Smitty while Smith was in prison during 2012 and 2013. Smith’s parents claimed that, after their 2012 motion for DNA testing, Miller had neither contacted nor supported the children in more than a year.

¶ 17. Miller correctly notes there is some support within the record for his standing in loco parentis: However, “[whenever there is substantial evidence in the record to support-the chancellor’s findings of fact, thosé findings' must'be affirmed.” In re Consematorship of Bardwell, 849 So.2d 1240, 1245 (¶ 16) (Miss. 2003). As did the Court of Appeals, we find this record supports the findings of the chancellor.

¶ 18. Miller further argues, though, that the Court of Appeals erred by not considering this Court’s decision in the case of In re Waites, 152 So.3d 306, 312 (¶ 15) (Miss. 2014). According to Miller, our decision there set forth factors to determine whether a step-parent can be put on the same level as the natural parent. What this Court held, though, waa that u[i]n loco parentis can—in very limited, unique situations—sometimes be used to help rebut the natural-parent presumption.” Id. But we have never suggested “that in loco parentis alone can rebut the natural-parent presumption,” Id. Moreover, we reemphasized that “[t]he court may not consider granting -custody to a third parr ty, including one standing in loco paren-tis, unless and until the third ’party rebuts [the natural-parent]. presumption.” Id. at 311 (¶ 14), Miller did- not rebut the natural-parent presumption: And we find substantial evidence within the record to support the chancellor’s conclusion that Miller did not stand in loco parentis. Accordingly, we affirm the judgments of the chancery court and Court of Appeals on this issue.

II. Whether Miller’s exclusion during Kristen’s testimony warrants reversal.

¶ 19. The issue regarding Miller’s removal from the courtroom, during the testimony of Kristen had relevance only while an issue existed concerning the custody of Morgan. A subsequent custody ruling of the trial court has granted custody of Morgan to Miller. We address the issue, though, because of conflicts in our caselaw as discussed below. See Alford v. Miss. Div. of Medicaid, 30 So.3d 1212, 1214 (¶ 8) (Miss. 2010) (issue not moot if question concerns a matter “detrimental to the public interest that' there should be a failure by the dismissal to declare and enforce a rule for future conduct.”) (citation omitted).

The Confrontation Clause of the Sixth Amendment

¶20. Miller ‘ argues the Confrontation Clause of the Sixth Amendment applies in this dase, even though it is a civil case. By its own language, the Confrontation Clause extends only to criminal cases. U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with witnesses against him ....”), (emphasis added); Hannah v. Larche, 363 U.S. 420, 440, 80 S.Ct. 1502, 1513, 4 L.Ed.2d 1307 n.16 (1960) (“[The Sixth] Amendment is specifically limited to ‘criminal prosecutions’ ....”). As the Court of -Appeals "correctly observed, “The Confrontation Clause only applies to criminal cases .... So [Miller’s] first argument fails.” Miller, 229 So.3d at 153, 2016 WL 6876509, at *3 (¶ 17).

¶ 21. According to Miller, the Court of Appeals’ decision is 1 contraiy to this Court’s precedent. To support his argument, Miller relies on In Interest of C.B., where we held “[t]his is not a criminal case, but we are of the- opinion that the right of confrontation should be accorded to an accused parent in” youth-court cases. In Interest of C.B., 574 So.2d 1369, 1374 (Miss. 1990). In a recent concurrence, though, Justice Beam wrote that our statement in In Interest of C.B. “was nonauthoritative dicta.” In re J.T., 188 So.3d 1192, 1205 (¶ 71) (Miss. 2016) (Beam, J., concurring in part and result).

¶ 22-. This Court cannot ignore the plain language of the Sixth Amendment;, which limits its own application to “criminal prosecutions.” To the extent- we- held in the case of In Interest of C.B., 574 So.2d at 1374, that the Sixth Amendment applies in civil proceedings, today we overrule it.

Article 8, Section 25 of the Mississippi Constitution

¶23. Miller argues his removal from- the courtroom violated Article 3, Section's of the Mississippi Constitution. “No person shall be debarred from prosecuting of defending any civil causé for or against him or herself .. by him or herself, or counsel, or both.” Miss. Const., art. 3, § 25. The Court of Appeals rejected Miller’s argument, ’ finding no violation “[b]e-cause [Miller’s] counsel was present during Kristen’s testimony .... ” Miller, 229 So.3d at 153, 2016 WL 6876509, at *4. However, the provision prohibits debarment of the individual “by him or herself.” Miss. Const. art. 3, § 25. The presence of Miller’s counsel did not cure the error that Miller, individually, was removed from the courtroom. As a result, a violation of Article 3, Section 25 occurred.

Harmless-JJrror Analysis

¶24. While the removal of Miller was error, the issue may be reviewed under harmless-error analysis. Smith v. State, 986 So.2d 290, 300 (¶30) (Miss. 2008); see also United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007).

¶25. First and foremost, while Miller was absent, his attorney was present during the entire questioning. And Miller fails to explain how the examination would have changed had he been present alongside his attorney. See Jones v. State, 912 So.2d 973, 977 (¶ 16) (Miss. 2005) (“Assertions of error without prejudice do not trigger reversal”).

¶ 26. While a Sixth Amendment case, the decision in Rollins v. State is instructive on the issue of removing a défendant from the courtroom. Rollins v. State, 970 So.2d 716 (Miss. 2007), In Rollins, the grand jury returned a multicount indictment charging the defendant with crimes related to sexual battery of children. Id. at 717 (¶2). The trial court allowed the children to testify through. closed-circuit television. Id. at 717 (¶ 3). The defendant was removed from the courtroom to watch the television .screen alone. Id. at 719 (¶ 5). However, technical difficulties arose, and the defendant was unable to view the witnesses on the screen. Id. at 721 (¶ 11). Because of the inability to see the witnesses and view their, demeanor, the defendant raised confrontation issues, claiming a violation of his right required reversal. Id. at 722 (¶ 13). However, this Court held, “in order to receive a new trial, [the defendant] must show the denial of his right to view the demeanor of the minor witnesses prejudiced him.” Id. The Court continued: “[S]ince [the defendant] does not argue that he was prejudiced or demonstrate how he was prejudiced, this argument is without merit.” Id.

¶27. This Court finds that the same reasoning in the Sixth Amendment cases of Jones and Rollins should apply to Miller’s objections under Article 3, Section 25 of the Mississippi Constitution. Smith must show how he was prejudiced by the procedure used by the trial court. See Goins v. State, 155 Miss. 662, 124 So. 785, 786 (1929) (holding a constitutional error “did not require a reversal, because it did' not result in any injury to the- defendant ....”).

¶ 28. The trial court should have provided a mechanism, such as closed-circuit TV, for Miller to observe witness testimony when he was removed from the courtroom. However, as the U.S. Supreme Court has held, “most constitutional errors can be harmless.” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 1263, 113 L.Ed.2d 302 (1991)). We hold that, due to the lack of prejudice to Miller, Miller’s erroneous removal was harmless.

CONCLUSION

¶ 29. Accordingly, the judgments of the chancery court and the Court of Appeals are affirmed.

¶ 30. AFFIRMED.

COLEMAN, MAXWELL AND CHAMBERLIN, JJ., CONCUR. BEAM, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED IN PART BY ' BEAM,J. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. ISHEE, J., NOT PARTICIPATING.

RANDOLPH, PRESIDING JUSTICE,

CONCURRING IN PART AND IN RESULT:

¶ 31. I concur with Part I of the Majority opinion, but would respectfully find that the issue addressed in Part II is moot.

BEAM, J., JOINS THIS OPINION IN PART.

KITCHENS, PRESIDING JUSTICE,

DISSENTING:

¶ 32. The chancellor’s having ordered Dale Patrick Miller to absent himself from the courtroom with no ability to monitor the proceedings or consult with counsel violated Miller’s rights guaranteed by Article 3, Section 25, of the Mississippi Constitution. I cannot join the majority’s determination that this was harmless error. I would reverse and remand this case for a new trial.

¶ 33. Article 3, Section 25, of the Mississippi Constitution states: “[n]o person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.” Miss. Const. art. 3, § 25. The word “ ‘debar’ means ‘1. To bar or exclude: shut out. 2. To forbid, hinder, or prevent.’ ” Dunn v. Yager, 58 So.3d 1171, 1189 (Miss. 2011) (quoting Webster’s II New College Dictionary 290 (1995)). And “[t]o ‘prosecute’ means ‘1. To pursue or persist in so as to finish.... 3.a. To initiate legal or criminal court action against, b. To seek to enforce or obtain by legal action.’ ” Dunn, 58 So.3d at 1189 (quoting Webster’s II New College Dictionary 888 (1995)). Thus, this Court has held “the plain language of Article 3, Section 25[,] lends itself to permitting a civil litigant, his or her counsel, or both, not only [to commence] the legal action, but also [to bring] it to completion.” Dunn, 58 So.3d at 1189.

¶ 34. This Court has found that Article 3, Section 25, guarantees a civil litigant a constitutional right to participate in closing argument even though that litigant is represented by counsel. Id, And in a child-custody-modification case in which the minor child has been made a party,-the Court of Appeals has found that, so long as the child remains a party, the chancellor’s order prohibiting the minor child’s attorney from consulting with the child about the trial violates Article 3, Section 25. In re E.C.P., 918 So.2d 809, 826-27 (Miss. Ct. App. 2005).

¶ 35. Article 3, Section 25, protects a litigant’s right to hear an opposing witness’s testimony and consult with his legal counsel about the same. A litigant’s ability to consult with his attorney is such a fundamental component of our adversarial system of justice that it constitutes an essential element of a criminal defendant’s competence to ’ stand trial. Sanders v. State, 9 So.3d 1132, 1135 (Miss. 2009) (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 788-89, 4 L.Ed.2d 824, 825 (1960)). A litigant who is denied the opportunity to observe or even hear a witness’s testimony loses his ability to consult with his attorney about that testimony.

¶ 36. This is not to say that the Constitution guarantees a civil litigant the right always to be physically present in the courtroom. Our Rules of Evidence recognize that other means exist to provide litigants an opportunity to observe testimony while protecting witnesses from neg-atiye effects likely to be created by a litigant’s physical presence. See- Miss. R. Evid. 617. But Article 3, Section 25, requires, trial judges .to provide someworka-ble mechanism for litigants to. consult with counsel, and to observe the testimony of every witness, in order to make informed decisions as to whether or how to proceed “by him or herself, or counsel, or both.” Miss. Const, art. 3, § 25.

¶37. Here, over Miller’s objection, the chancellor failed to provide such a mechanism. Miller timely asserted his right to observe the alleged victim’s testimony, but the chancellor excluded, him -from the courtroom without providing any way for him.to observe the testimony or consult, contemporaneously, with counsel. This violated Miller’s rights under Article 3, Section 25.

¶ 38. Outside Miller’s presence, the alleged victim testified not only about the alleged abuse, but also provided a lengthy account about Miller’s relationship with Morgan and Smitty, the children whose custody was at issue. The. chancellor ultimately held that Miller did not stand.in loco parentis with Smitty and, against the recommendation of the guardian ad litem, denied his request for custody. The majority finds that Miller’s exclusion from the courtroom was error, but then divines that Miller.was. not prejudiced by such exclusion. Our review of the record does not allow us to discern whether, had Miller been present for the alleged victim’s .testimony, he might have suggested cross-examination questions to his counsel concerning parts of her testimony. And we cannot say that he would not have chosen to cross-examine her himself. An inherent uncertainty arises‘when a trial judge unconstitutionally denies a litigant his right to participate fully in the trial court litigation. In view of that uncertainty, we cannot know whether Miller’s exclusion from the courtroom prejudiced or otherwise affected his defense.

KING, J., JOINS THIS OPINION,

      . We have continued to use the alias “Kristen” fashioned by the Court of Appeals because of the allegations of sexual abuse.

      . The different names involved in this litigation are confusing. For simplicity, Barbara Keller will be referred to as "Smith’s mother” or "Smith’s parents” for Smith’s mother and father.

      . This statement has been used in briefing before the U.S. Supreme Court in support of extending the Confrontation Clause into civil cases. Brief of Amicus Curiae in Support of Petition at 6, Ohio v. Clark, (No. 13-1352), 2014 WL 2612613, *6 (June 11, 2014) (citing In Interest of C.B., "Mississippi courts have expressly held that the Sixth Amendment’s Confrontation Clause affords civil litigants in child custody cases the right to confront witnesses against them.”).

      ; I do not address a situation in which a litigant's conduct necessitates his or her re.-moval from the courtroom for the purpose of maintaining order, since that factor was not present in this instance,


author: MAXWELL, JUSTICE, KITCHENS, PRESIDING JUSTICE,

text:
    Monica Ashbrook DARBY and Andrew Ross Darby v. Harold COMBS, Karron Combs and Crystal Johanna Combs
    NO. 2015-CT-00793-SCT
    Supreme Court of Mississippi.
    11/9/2017

      TRACY BUSTER WALSH, ATTORNEY FOR APPELLANTS.

      A. E. (RUSTY) HARLOW, JR. EATHI CRESTMAN WILSON, ATTORNEYS FOR APPELLEES.
   ON WRIT OF CERTIORARI

MAXWELL, JUSTICE,

FOR THE COURT:

¶ 1. In this custody case, the chancellor found the natural parents unfit to retain custody of their young daughter. After considering the child’s best interest and conducting an Albright analysis, the chancellor awarded joint custody to the child’s maternal great-grandparents and paternal grandmother. The paternal grandmother appealed. She argued Mississippi Code Section 93-5-24 (Rev. 2013) prohibits joint-custody awards to third parties. .

¶ 2. We assigned this case to the Court of Appeals, and the appellate court affirmed the chancellor’s decision. Darby v. Combs, 229 So.3d 136, 2016 WL 6276610 (Miss. Ct. App. Oct. 25, 2016). The paternal grandmother then petitioned this Court for certiorari review, which was granted. After review, we find Section 93-5-24 allows joint-custody awards among third parties. Thus, the chancellor did not abuse his discretion, and the Court of Appeals was right in recognizing as much. We therefore affirm.

Background Facts and Procedural History

¶3. Adriana Rose Darby (Addie) was born to unwed parents on February 11, 2013. Her mother Crystal Combs was eighteen. Her father Andrew Darby was twenty. Crystal lived with her grandparents, Harold and Karron Combs. The Combses had cared for Crystal since she was three years old, after obtaining full custody of her by court order. Andrew Darby lived with his parents, Ross and Monica Darby. He frequently visited Crystal and Addie at the Combses’ home.

¶ 4. Crystal was Addie’s primary caregiver following her birth. But on August 20, 2013, Monica Darby filed a petition for custody or, alternatively, visitation with Addie. She alleged Crystal and Andrew had neglected Addie and were unable to care for her properly. Crystal and Andrew each answered and requested custody of Addie. Andrew also sought a filiation order, declaring him Addie’s father. Because of the neglect allegations, the chancellor appointed a guardian ad litem (GAL). The GAL was ordered to investigate and prepare a written report with her recommendations.

¶ 5. On February 24, 2014, Monica Darby filed a motion for a temporary restraining order (TRO). She cited Crystal’s arrest for drug paraphernalia the previous week. The chancellor granted the TRO. He temporarily awarded full custody of Addie to Monica and set a preliminary injunction hearing. Soon after, the Combses filed a motion to intervene, which was granted. They asked the chancellor to award them custody of Addie and declare Crystal and Andrew unfit.

¶ 6. At the preliminary injunction hearing on March 18, 2014, the chancellor found Addie would be irreparably harmed unless Mrs. Darby continued to have full custody. His order enjoined Crystal from any contact with her daughter.- On April 15, 2014, the chancellor entered an order granting the Combses’ request for visitation with Addie, stipulating Crystal would have no contact with Addie. The chancellor later amended the order to give Crystal supervised visitation.

¶ 7. On October 2, 2014, and December 18, 2014, the chancellor heard arguments on Mrs. Darby’s custody petition. There was extensive testimony and evidence about Crystal’s and Andrew’s parental fitness. Harold Combs testified that Andrew had twice attempted suicide at their home by cutting his arms. Both times the police were summoned. On another occasion, Andrew was charged with domestic violence and simple assault. He had thrown a telephone at Crystal while she was holding Addie. The telephone struck Crystal in the head, and she was taken to the hospital for stitches.

¶ 8. Monica Darby testified that on August 6, 2014, Andrew smacked Ross Darby in the head with a skillet during an argument. Ross had to have the wound stapled, and Andrew faced criminal charges for the incident. There was also testimony about Andrew’s history of drug and alcohol abuse.

¶ 9. Andrew’s history of mental illness was also highlighted, including bipolar disorder and schizophrenia. Andrew had received mental-health treatment on several occasions. At one point, he was committed to the state hospital in Tupelo. After his discharge, Andrew moved to Jonesboro, Arkansas, to live with his grandparents and attend college at Arkansas State University. Monica testified that Andrew receives outpatient treatment and is doing well.

¶ 10. Crystal’s fitness was similarly at issue. She admitted she could not provide a • stable home for Addie at that time. Crystal testified about her own drug use. She explained that she and Andrew had used drugs and alcohol with Mr. Darby, without Mrs. Darby’s knowledge. Karron Combs testified that Crystal was arrested for possessing drug paraphernalia in February 2014. This was when she and her husband first discovered Crystal was using drugs. Karron viewed her granddaughter as an accomplished liar who had fooled them about her drug use. Crystal admitted using drugs at the Combses’ home. She claimed they were unaware because she had concealed her drug use from them. According to Karron, Crystal later completed a drug rehabilitation program. Since then, her attitude and behavior had improved greatly.

¶ 11. The chancellor commented on the “very disturbing” nature of the case. He said he faced a scenario where “both parents are admittedly unfit to have custody.” Citing this dilemma, he proceeded under Mississippi Code Section 93-5-24(l)(e) and arranged third-party custody between Monica and the Combses. Though he found this arrangement was in Addie’s best interest, his Albright analysis recognized that Monica and the Combses “le[ft] a lot to be desired.”

¶ 12. Both sides believed they were best suited for custody of Addie. Karron testified she and Harold Combs were fully able to care for her. Harold has no significant health problems and is a computer programmer with flexible hours. And Karron is a retired teacher. While she has some health problems, she said her. conditions are managed and would not interfere with her ability to care for Addie. Both Harold and Karron agreed that Crystal was unfit for child custody and that any visitation with Addie should be supervised.

■ ¶ 13. Monica testified that she was Addie’s primary caregiver since the TRO was granted-in March 2014. She works for a utility company during the week. But her hours are flexible, and Addie was in daycare while she worked. In addition to Addie, Monica cares for three other children—ages fifteen, thirteen, and nine. Each is thriving in school and extracurricular activities. Monica has a health problem she manages with medication, which she insisted does not affect her ability to care for Addie or the other children.

¶ 14. The GAL report was admitted in evidence. She also testified at the hearing. The GAL recommended Monica be awarded custody of Addie with the Combses receiving' visitation. The GAL found that neither Andrew nor Crystal could provide' a safe and stable envir'ónmént for Addie. She recommended any visitation granted to them be supervised. She believed the' Combses’ failure to recognize'and address Crystal’s destructive behavior had endangered Addie. The GAL also faulted.the CQmbses for allowing the toxic relationship between Crystal and Andrew to continue in their home. But. she still felt Addie’s best interests required the Combses’ continued involvement in her life.

¶ 15. In his January 23, 2015 order, the chancellor found it in Addie’s best interest that Monica and the Combses share joint physical custody. He fashioned an arrangement in which Monica had custody of Addie while Andrew was away at college. And the Combses would have custody during alternating weekends, holidays, and the summer months. The chancellor also set a visitation schedule. .He ordered that any visitation by Andrew or-Crystal be supervised.. He further ordered Monica to pay-one half of the $3,000. GAL fee and the Combses the other half.

¶ 16. On February 4, 2015, the chancellor clarified his January order with specific Albright findings, including his reasons for rejecting the GAL’s recommendations. The chancellor found Addie’s age, health, and sex favored neither party. He found the' continuity-of-care factor favored • Monica, because she had full custody of Addie since February 14, 2014. The chancellor recognized all parties :had difficulties parenting, due to Andrew’s drug and -mental-health problems and Crystal’s drug issues. So Re found this factor neutral The chancellor also found the moral-fitness factor to be neutral, since both parties had condoned Andrew’s sexual activity with Crystal while she was underage.

¶ 17; As to the stability of the home environment, the chancellor found this factor favored the Combses, because he was unsure Monica and Ross Darby would remain married. The two had separated after Andrew struck Ross with the skillet. The-chancellor-found both parties were willing and able to provide primary child care. But the factor concerning physical health favored Monica, who was more suited to handling the daily rigors of Addie’s schooling. The employment factor was deemed to favor the Combses, because Monica’s job takes-her from home each day. The chancellor determined Addie’s home, school, and community record was not applicable to the case. Lastly, he found the emotional-ties factor favored neither party.. He recognized both parties loved Addie and there was, no evidence she did not-love each of them; ■ !-

, ¶ 18. Because of his. concerns with Andrew, the chancellor rejected -the GAL’s recommendation that Monica be given sole custody of Addie. Based on Andrew’s mental-health issues and the previous violence' in Monica’s home, he concluded “the safest route” was for Addie to reside with Monica only when Andrew was in school.

¶ 19. Monica filed a motion to reconsider, and on April 27, ’2015, the chancellor entered an amended judgment further clarifying his opinion. The chancellor declared Andrew to be Addie’s natural 'father. The chancellor also clarified that joint physical and joint legal custody would be shared by Monica and the 'Combses. The chancellor directed Andrew and Crystal “pay $100.00 each per month by the' 5th of each month as child support to whomever has the primary custody of Addie for that month.” The chancellor also clarified the visitation schedule.

¶20. Monica appealed. She challenged the joint-custody award and claimed the chancellor wrongly denied her any holiday visitation. She also argued the chancellor abused his discretion by assessing her a portion of the GAL fees, and by entering a vague and ambiguous child-support award. This Court assigned her appeal to the Court of Appeals, which found no merit- to her claims. Monica sought certiorari review by this Court. She raises just one issue—that the Court of Appeals erred in affirming the. joint-custody award.

Discussion .

¶ 21. We apply a limited standard of review in child-custody cases. Johnson v. Gray, 859 So.2d 1006, 1012 (Miss. 2003). We will not reverse a chancellor’s factual determinations unless manifestly wrong or clearly erroneous. Id. Questions of law are reviewed de novo. Vaughn v. Davis, 36 So.3d 1261, 1264 (Miss. 2010).

¶ 22. Monica argues the governing custody statute does not allow chancellors to award joint! custody to parties other than the child’s natural parents. And even if the statute permitted this custody arrangement, the chancellor failed-to make a necessary express finding that she and the Combses could cooperate as Addie’s joint custodians.

I. Third-Party Joint Custody

¶23. Chancellors have jurisdiction to make custody decisions. See Miss. Const. art. 6, § 159; see also Davis v. Davis, 194 Miss. 343, 12 So.2d 435, 436 (1943). And their decisions must be made with an eye on the best interests and welfare of the child. Albright, 437 So.2d at 1005; Carr v. Carr, 480 So.2d 1120 (Miss. 1985) (extending the coverage of the Al-bright decision to all original custody decisions)). Here, the Court of Appeals correctly recognizéd this notion, explaining “[i]n a custody contest’between third parties, where neither party has a süperior right 'to custody of the child,' the child’s best interests and welfare are the polestar Consideration.” Darby, 229 So.3d at 144-45, 2016 WL 6276610, at *7.

¶24. With Addie’s best interests in mind, and in light of his finding that Crystal and Andrew were unfit parents, the chancellor consulted Section 93-5-24(1)(e). This statute clearly permits third-party custody arrangements. Under Section 93-5-24(1)(e):

Upon a finding by the court that both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise-unfit to rear and train, the child the court may award physical and legal custody to:
(i) The person in whose home the child has been living in a wholesome and stable environment; or
(ii) Physical, and legal custody to any other person deemed-by the court to be suitable and able to provide adequate and proper care and guidance for the child.

Miss. Code Ann. § 93-5-24. So, based on his finding of parental unfitness, the chancellor was statutorily empowered to fashion a third-party-custody award. Monica does not seriously contest the chancellor’s authority to grant third-party custody. What she argues is that the chancellor lacked authority to craft a third-party joint custody award.

¶25. As support, Monica latches on to the use of the word “person” .and the phrase “any other person” in Section 93-5-24(l)(e)(i) and (ii). She insists this singular language makes clear that only one person or party may receive custody. So as she sees it, joint custody awards are not allowed between third parties under Section 93-5-24(l)(e)(i) and (ii). She suggests the definition of joint physical custody in Section. 93-5-24(5)(c) .supports her interpretation. We disagree.

¶ 26. First, it is obvious Subsection 93-5-24(5)(c) contemplates joint physical custody between “parents.”. And here, the chancellor deemed Addie’s parents unfit for custody.

¶ 27. Second,"Monica overlooks—and our statutory law instructs—that “[wjords used in the singular number only, either as descriptive of persons or 'things, shall extend to and embrace the plural number ... except where a contrary intention is manifest.” Miss. Code Ann. § 1-3-33 (Rev. 2014). And we see no contrary intention manifested within the statute.

¶28. Indeed, Section 93-5-24(5) concludes by explaining that “[a]n award of joint physical and legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child and ... the parents or parties shall confer with one another in the exercise of decision making rights, responsibilities, and authority.” So, Section 93-5-24(5) suggests that joint physical and legal custody may be awarded to either parents or parties. Thus, we find no legal error in the chancellor’s statutory application.

¶ 29. -As we recognized in Crider, the overarching consideration in Section 93-5-24 is that “[cjustody shall be awarded as follows according to the best interests of the child.” Crider v. Crider, 904 So.2d 142, 144 (Miss. 2005). And here, we cannot say the chancellor’s custody award was against Addie’s best interest.

II. Cooperation for Joint Custody

¶ 30. Monica next suggests the chancellor erred by awarding joint custody without making an express finding that the parties could cooperate as Addie’s joint custodians. We disagree. As discussed, the chancellor carefully walked through the Albright factors and crafted a workable third-party custody arrangement.

¶ 31. Though joint custody between third parties may not typically be preferable, this is a difficult and, as the chancellor put it, “unusual” case. Facing' the realities of obviously unfit parents and a neglected child, the chancellor did what he was duty bound to do—he consulted Section 95-5-24 and keyed in on the child’s best interest and welfare. The severity of Andrew’s drug problems, mental-health issues, and violent tendencies and Crystal’s extensive drug and alcohol abuse required the chancellor look elsewhere for custody arrangements.

¶ 32. When parents cannot agree on who should have primary custody of the children, this Court has suggested “it is probably the better course for the chancellor to make that decision for them reserving joint custody for parents who are willing to work together to make joint custody feasible.” Waller v. Waller, 754 So.2d 1181, 1184 (Miss. 2000) (emphasis added). The dissent basically stretches this language into a new affirmative requirement, essentially grafting a non-Albright factor onto the Albright test. And it concludes remand is necessary because the chancellor did not make an “express determination of whether the parties can cooperate in exercising joint custody.” We agree this consideration is certainly relevant. But by no means did Waller create a new mandate that chancellors make this “éxpress determination,” or else a joint-custody award and Albright analysis will be legally lacking and require remand for additional findings. Rather, the Waller court, citing an American Law Report on joint-custody awards, suggests in a footnote that chancellors make joint-custody awards where the parties are able to cooperate. Id. at 1184 n.1 (citations omitted).

¶33. Here, the chancellor rejected the GAL’s recommendations and carefully weighed the Albright factors and statutory law, deciding a joint-custody award was “the safest route” to protect Addie from potential violence. He had no qualms that Monica and the Combses could carry out this arrangement. If he had felt a joint-custody arrangement was unworkable, he would not have fashioned one. After review, we find no error in the chancellor’s joint-custody award.

Conclusion

U34. We find Section 93-5-24 permits third parties to share joint custody when the child’s parents have been found'unfit and joint custody is in the child’s best interest. And the chancellor was not required to make an express finding that Monica and the Combses could cooperate as Addie’s joint custodians.

¶ 35. AFFIRMED.

WALLER,C.J., RANDOLPH,P.J., COLEMAN, BEAM’AND CHAMBERLÍN, JJ., CONCUR. KITCHENS, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. ISHEE, J. NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE,

CONCURRING IN PART AND DISSENTING IN PART:

¶36. .1 agree that the chancellor was fully empowered under our statutes to award joint custody of Adriana Rose Darby (Addie), to her paternal grandmother, Monica Darby, and to . her maternal great-grandparents, Harold and Karron Combs. But I would hold that, when a chancellor orders third parties from different households to share.custody of a child, with all the attendant duties of cooperation that this endeavor entails, the chancellor reversibly errs by failing-to make an express finding that the parties can cooperate willingly in the rearing of that child. I would find that Addie’s best interest requires that-this Court reverse and remand for the chancellor to make an express'determination of whether Monica Darby and the Combses, who .have displayed little or no predilection for cooperation in the past, are capable of willingly cooperating as joint custodians of Addie.

¶ 37. In Rutledge v. Rutledge, this Court held that:

The essence of joint custody is that both parents share responsibility and authority with respect to the children. This involves parental consultation and agreement on all major decisions affecting the children. The decision making, process thus approximates that of an intact nuclear family. Parents with joint custody make joint decisions on all matters having a significant impact on. their children’s lives.

Rutledge v. Rutledge, 487 So.2d 218, 219 (Miss. 1986). “[T]he cardinal criterion'for an award of joint custody is ,.. mutual ability to cooperate in reaching shared decisions in matters affecting the child’s welfare.” Waller v. Waller, 754 So.2d 1181, 1184 n.1 (Miss. 2000). “Cooperation between the parents is paramount even in jurisdictions where there is a presumption that joint custody is in the best interest of the child.” Id. This Court has expressed that joint custody should be ¡awarded only when the purported joint custodians “are willing to work together to make joint custody feasible.” Id. at 1184. In Crider v. Crider, we clearly announced that “unless the parents are 'capable' of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award joint custody.” Crider v. Crider, 904 So.2d 142, 147 (Miss. 2005).

¶38. The -import of these decisions is that, if the chancellor believes that the purported joint custodians cannot cooperate willingly, then joint custody is not in the best interest of the child. And the .chancellor’s duty to consider the ability of purported joint custodians to cooperate willingly fits smoothly within the Albright framework. See Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983) (in making a custody determination,, the chancellor must make findings on factors including the parties’ willingness and capacity to' provide primary child care),

¶39. Further, Crider clarified that determining. the parties’ ability to cooperate in sharing joint custody is a matter within the chancellor’s sound discretion. We found that the chancellor “is in the best position to evaluate the credibility, sincerity, capabilities and intentions .of the parties” regarding their ability to cooperate in the exercise of joint custody. Crider, 904 So.2d at 147. “It is the chancellor’s responsibility to ensure that the parents [or parties] are capable, of cooperating in a joint custody arrangement.” Id. at 148.

¶ 40. It is true that the chancellor carefully considered' the Albright factors to determine the custodial arrangement that would be in Addie’s best interest. In doing so, the chancellor weighed the evidence after hearing the trial testimony, observing the demeanor of the witnesses, and reviewing the exhibits. The chancellor explained -that the evidence of violence in Mrs. Darby’s.'home, coupled with Andrew Darby’s mental condition and his expected periodic presence in her home, caused him to reject the GAL’s recommendation that Mrs. Darby have sole custody. However, in his orders the. chancellor did not address explicitly the fact that the award of joint custody.will require Mrs. Darby and the Combses to cooperate willingly in making parenting decisions in Addie s best interest.

¶ 41. The majority speculates, and ultimately decides, that the chancellor’s award of joint custody means that he implicitly found that the parties could cooperate. I reject this approach. A child custody arrangement is one of the most consequential and weighty decisions a chancellor ever makes. It is a decision of no small import when a chancellor orders third parties, with no history of cooperation in any matter whatsoever, to share physical and legal custody of a minor child, an undertaking that necessitates countless coordinated exercises of responsibility, authority, and significant decision making. This Court should not imply or surmise, in such circumstances, that such a finding was made. I would hold that an express determination of whether the parties can cooperate willingly in exercising joint custody is necessary when joint custody is awarded to third parties who are members of different households. Because the chancellor made no such express determination, I would reverse the award of joint custody and remand for fact findings on whether Monica Darby and the Combses are capable of and committed to genuine cooperation in the rearing of Addie, and whether they are willing and able to exercise such cooperation. The chancellor should render a new custody determination under the factors from Albright if he finds that the parties are incapable of, or unlikely to engage in, willing cooperation.

KING, J„ JOINS THIS OPINION.

      . Albright v. Albright, 437 So.2d 1003 (Miss. 1983).

      . When making a custody determination, chancellors must weigh factors such as:
      [The] health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

        Albright, 437 So.2d at 1005.

      .Section 93-5-24(5)(c) defines joint physical custody as:
      For the purposes of this section, “joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.
      Miss. Code Ann. § 93-5-24.

      . Albright, 437 So.2d at 1005.

      . See Crider, 904 So.2d at 144 (this Court has "clearly declared time and time again that the polestar consideration in all ca.ses dealing with child custody ... is the best interest and welfare of the child.") (citations omitted).

      . The same was true in Crider, in which this Court said the chancellor is responsible for ensuring the parties "are capable of cooperating in a joint custody arrangement.” Crider, 904 So.2d at 148. But again, no new rule or requirement mandating an express, separate finding of cooperation between the parties .was created.


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