Not designated for publication
ARKANSAS COURT OF APPEALS
DIVISION I
No. CA 08-1022
ANGIE FLETCHER
Opinion Delivered May 6, 2009
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
[NO. PGD-07-2050]
V.
KEVIN SCORZA
APPELLEE
HONORABLE MACKIE M. PIERCE,
JUDGE
REVERSED
COURTNEY HUDSON HENRY, Judge
Appellant Angie Fletcher appeals from an order appointing appellee Kevin Scorza as
the permanent guardian of her son J.F., whose date of birth is December 8, 1997. For
reversal, appellant contends that the appointment of appellee as J.F.’s guardian is contrary to
the law and the evidence presented at the hearing. We find merit in appellant’s argument and
reverse the guardianship order.
In 1999, appellant and J.F., her eighteen-month-old son, began living with appellee
in New Orleans. Appellant and appellee continued to live together for almost six years, yet
they never married. During that time, the couple had two children of their own, but they
ended their relationship in early 2005. Appellant kept the children upon their separation.
Shortly thereafter, a Louisiana court formally granted appellant custody of the parties’ two
children and ordered appellee to pay child support for them. Appellee exercised regular
visitation with all three of the children and lived with his mother, his younger brother, who
is a minor, and his grandmother. In mid 2005, appellant obtained a job that required her to
work during the evening hours. Consequently, appellee kept the children overnight while
appellant worked. Under this arrangement, appellant transported the children to appellee’s
home in the evenings and retrieved them in the mornings. She also drove them to school and
picked them up each afternoon. Meanwhile, appellant also attended school.
When Hurricane Katrina approached the New Orleans area in late August 2005, the
parties decided that appellee would evacuate with the children as he had done when
Hurricane Ivan made landfall in the region. Appellant could not accompany them, because
her job as a law enforcement officer required her to remain in New Orleans. As a result,
appellee, along with his mother, his brother, his grandmother, the parties’ two children, and
J.F. left New Orleans to escape the storm.
The parties believed that the evacuation would last only a matter of days. However,
Katrina proved to be more devastating than they anticipated, and like so many others, both
appellant and appellee lost their homes to the hurricane. In the week and a half following the
storm, appellant stayed at city hall. Afterwards, she lived on a cruise ship, along with other
city officials, for six or seven months. During this time, appellee and the other family
members settled into a home in North Little Rock, and appellee enrolled the children in
school there. The parties agreed that it was in the best interest of the children to remain in
Arkansas because New Orleans and its school system were in a state of disarray. In addition,
appellant had enrolled in nursing school prior to the hurricane, and she was scheduled to
-2-
CA 08-1022
begin classes in January 2006. However, because of the natural disaster, classes did not
commence until April 2006. For the following year and a half, appellant not only worked but
also attended nursing school until her graduation in December 2007.
At Christmas 2007, appellant transported the children to New Orleans, but she did
not return them to Arkansas after the holiday season. On January 7, 2008, appellee filed a
petition in the Pulaski County Circuit Court requesting an ex parte order requiring the return
of J.F. to Arkansas. Appellee also asked to be appointed as J.F.’s guardian. In this petition,
appellee alleged that he stood in loco parentis to J.F. because he was the only father J.F. had
known and because he had maintained physical custody of J.F. since August 2005. Appellee
also recognized that appellant had visited the child at least seven times since August 2005 and
that she spoke on the phone with J.F. on a regular basis. Appellee asserted, however, that
appellant was unfit because she had failed to discharge her obligations as a parent to care for
and protect the child. The trial court granted appellee’s petition for ex parte relief and
appointed him as J.F.’s temporary guardian on January 7, 2008. Pursuant to that court order,
appellee brought J.F. back to North Little Rock. On January 10, 2008, the court held a
hearing at which the court confirmed the order of temporary guardianship. The court
conducted a final guardianship hearing on April 15, 2008, and considered the testimony
presented at this hearing, as well the testimony offered at the previous hearing.
Appellee introduced the testimony of his mother, Barbara Scorza, and Diane
Heffington, who attended appellee’s church. Both witnesses attested to appellee’s close
relationship with J.F. and to how well appellee cared for him. They spoke about the
-3-
CA 08-1022
cohesiveness of appellee’s family and J.F.’s love for them and about the children’s
involvement in extracurricular and church-related activities. Ms. Scorza gave testimony
relating problems experienced during appellant’s last visit with the children. She also referred
to a time that appellant did not visit with the children when Ms. Scorza brought them to
New Orleans on a work-related trip. She also testified that appellee suffered a stroke in
January 2007 and spent fourteen days in the hospital. Ms. Scorza said that appellant offered
to take the children but that she told appellant that it was not necessary.
In his testimony, appellee stated that appellant’s visitation with the children was not
problematic and that appellant took the children to Disney World the previous summer. He
testified that appellant called the children four or five times a month and that she had
telephoned the children once a day since the previous hearing. Appellee stated that appellant
called in December 2007 and asked for the children to come home because she had finished
nursing school. Appellee testified that he told her that it would be best for the children to
finish the school year in Arkansas and that they would discuss the matter in the summer.
Appellee further testified that he continued making his child-support payments to
appellant after leaving Louisiana. He said that appellant did not offer to pay support for the
children but that she provided money when he asked and that she sent gifts and money for
birthdays and Christmas. He also stated that the children routinely came home with new
clothes after visiting appellant. Appellee testified that he sought to have his child-support
obligation terminated and that appellant was not pleased with him for pursuing that action.
He said that appellant received the last payment of child support in August 2007 and that the
-4-
CA 08-1022
child-support case was closed in his favor in December 2007. He said, however, that the
payments were still being deducted from his paychecks but that he was receiving refunds of
the amounts withheld from his checks. Appellee added that appellant had no drug or alcoholrelated problems.
Appellant testified that she graduated from nursing school on December 14, 2007, and
that she worked as a staff nurse at the Oschner Clinic Foundation. She said that her hours
were flexible and that she could adjust them as needed in order to care for J.F. Appellant
stated that she lived in a two-bedroom home with her boyfriend and that she had obtained
a loan to purchase a home. She testified that, after Katrina, the children had to stay with
appellee since they both lost their homes and because New Orleans was dangerous. She said
that she knew that the children were well cared for and safe with appellee. Appellant testified
that she and appellee had an agreement that the children would return to New Orleans with
her once she finished nursing school. She said that she was willing for J.F. to stay in Arkansas
to finish the school year before being returned to her care.
Appellant also testified that she returned the child-support monies to appellee by
purchasing things for the children and that she sent clothes, shoes, and money on a regular
basis. She said that she visited the children nine or ten times since they left Louisiana.
Appellant further testified that appellee always considered J.F. as his own child and that she
was grateful for that gesture. She said that appellant had fathered a child with another woman
after she and appellee separated and that, as far as she knew, appellee did not have visitation
with the child and did not pay child support.
-5-
CA 08-1022
After the hearing, the trial court granted appellee’s petition to be appointed as J.F.’s
permanent guardian. In its order dated May 2, 2008, the trial court made the following
findings: (1) that appellee was on equal footing with appellant because he stood in loco parentis
to the child; (2) that there was no proof that appellant contributed to J.F.’s support other than
providing gifts and money at Christmas and on birthdays; (3) that appellant made a conscious
decision to delegate her parental responsibilities; (4) that appellant sought to regain custody
only after appellee’s child-support payments ceased; and (5) that appellant was unfit because
a fit mother would not delegate parental responsibilities only so long as it benefitted her
financially. Appellant filed a timely notice of appeal from this order.
Appellant argues on appeal that the trial court’s decision is contrary to the law and is
against the preponderance of the evidence. We review probate proceedings de novo, but we
will not reverse the decision of the trial court unless it is clearly erroneous. Freeman v.
Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005). A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court is left with a definite and firm
conviction that a mistake has been made. Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864
(2007). When reviewing probate proceedings, we give due regard to the opportunity and
superior position of the trial court to determine the credibility of the witnesses. Freeman,
supra.
Before appointing a guardian, the trial court must be satisfied that (1) the person from
whom guardianship is sought is a minor or otherwise incapacitated; (2) a guardianship is
desirable to protect the needs of that person; and (3) the person to be appointed guardian is
-6-
CA 08-1022
qualified and suitable to act as such. Ark. Code Ann. § 28-65-210 (Repl. 2004). Where the
incapacitated person is a minor, the key factor in determining guardianship is the best interest
of the child. Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000).
It is well settled that our law establishes a preference for the natural parent in thirdparty custody cases and that preference must prevail unless it is established that the natural
parent is unfit. Robbins v. State, 80 Ark. App. 204, 92 S.W.3d 707 (2002). This preference
applies in guardianship cases as well. Ark. Code Ann. § 28-65-204(a) (Repl. 2004); Blunt,
supra. The rights of parents are not proprietary and are subject to the related duty to care for
and protect the child; thus, the law secures this preference only as long as parents discharge
their obligations. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001). However, both this
court and our supreme court have not hesitated to reverse third-party custody awards when
it is not shown that the natural parent is unfit. Devine v. Martens, 371 Ark. 60, 263 S.W.3d
515 (2007); Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Stamps v. Rawlins, 297
Ark. 370, 761 S.W.2d 933 (1988); Moore v. Sipes, 85 Ark. App. 15, 146 S.W.3d 903 (2004);
Robbins, supra. By contrast, in Freeman, supra, the supreme court affirmed a guardianship of
a child in his grandparents when the child had always lived in the grandparents’ home and the
father, though fit, had never spent any extended period of time with the child.
We find the case of Devine v. Martens, supra, to be instructive. There, the trial court
granted permanent guardianship of a child to third persons, the child’s grandparents. The trial
court found that the natural mother was unfit because the mother had relinquished custody
of the child to the grandparents; the mother maintained an unwholesome environment for
-7-
CA 08-1022
the child by exposing him to questionable art and nudity; the mother maintained an internet
presence without regard to whether the child might see her photographs on the internet; the
mother maintained a home environment that was dirty and smelled of urine; the mother
permitted an excessive number of absences and tardiness at school; and the child developed
bladder and bowel problems while living with the mother.
On appeal, the supreme court reversed the trial court’s finding of unfitness. In so
doing, the court likened the trial court’s concerns about the mother to those typically found
in dependency-neglect cases, where parents are given the opportunity to makes changes and
to correct the problems in the home. The supreme court noted that the mother had
corrected the deficiencies in her home and had made changes in her unusual lifestyle and held
that the trial court erred by depriving her of custody. The supreme court’s review of the
record also led it to conclude that the mother had not abandoned the child. In its concluding
remarks, the supreme court observed:
This state’s courts should not be in business of permanently
removing children from their parents’ custody simply because the
parents have exercised poor judgment in caring for their
children. Just as the Arkansas Juvenile Code recognizes the
efforts of parents in dependency-neglect actions to improve their
homes and parenting skills, we should encourage and recognize
such improvements by parents in guardianship actions. Frankly,
it is not in a child’s best interests to take custody from a natural
parent who has rectified all issues related to his or her fitness, and
grant custody to a third party, such as the child’s grandparents.
Id. at 74, 263 S.W.3d at 526.
In the present case, we also hold that the trial court erred by granting the guardianship
petition. The parties agreed that J.F. would stay in Arkansas with appellee because of the
-8-
CA 08-1022
devastation and turmoil caused by Hurricane Katrina. Given the circumstances prevailing in
New Orleans and appellant’s lack of housing, appellant exercised wise judgment by permitting
J.F. to remain with appellee. It would appear that the trial court questioned appellant’s
judgment for allowing J.F. to stay with appellee past the time when the court surmised that
the situation in New Orleans had stabilized. However, during this time, appellant was
making efforts to improve the quality of her life, and thus J.F.’s, by obtaining her degree in
nursing. While the parties’ agreement placed J.F. in appellee’s temporary care, the evidence
shows that appellant was not wholly derelict in her duties as a parent. Although appellant paid
no support per se, it is undisputed that she sent gifts and provided money, clothing, and other
necessities during this period of separation. Appellant also maintained consistent contact with
J.F. by phone and visited with him on a number of occasions. Moreover, the trial court’s
finding that appellant’s resumption of custody coincided with the cessation of child support
is not justified on this record. The evidence shows that appellant stopped receiving appellee’s
child-support payments in August 2007, and not in December 2007 when she reclaimed the
child. Instead, appellant’s resumption of custody coincided with her graduation from nursing
school.
Upon our review of the evidence and law, we are left with the definite and firm
conviction that the trial court made a mistake in finding that appellant is an unfit parent. We
recognize that appellee was not obligated to care for J.F., yet he provided for the child’s needs
during a difficult time when the child needed stability in his life. Thus, we commend appellee
for his dedication to J.F. and his willingness to act as his guardian. However, the record
-9-
CA 08-1022
demonstrates that appellant is a fit parent, and thus the child’s best interest favors returning
him to her care. Therefore, we reverse the order appointing appellee as the permanent
guardian of J.F.
Reversed.
G LOVER and B ROWN, JJ., agree.
-10-
CA 08-1022
