Hooks v. Pratte

Vaughan Benjamin HOOKS and Sandra Clark
Goodier v. Ronya Annette PRATTE

CA 95-391                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered April 24, 1996


1.   Appeal & error -- arguments raised for first time on appeal
     not considered. -- The appellate court will not consider
     arguments raised for the first time on appeal.

2.   Parent & child -- termination of guardianship -- no record
     that appellant filed copy of birth certificate with court --
     probate court did not err in dismissing appellant as party. --
     Where the probate court had stated that it would allow
     appellant, a Texas resident who claimed that he was the
     natural father of the child in question, to remain a party to
     the guardianship-termination proceeding if he could provide
     the court with any law to the effect that he would be an
     appropriate party and also stated that, if, under Texas law,
     appellant's name on the birth certificate was sufficient to
     establish paternity, appellant needed to file the birth
     certificate and the statute with the court; and where,
     although appellant later filed with the court a copy of a
     Texas statute indicating that a man is presumed to be the
     biological father of a child if he consents in writing to be
     named as the child's father on the child's birth certificate,
     there was no record that appellant filed a copy of the child's
     birth certificate with the court, the appellate court could
     not say that the probate court erred in dismissing appellant
     as a party.  

3.   Appeal & error -- failure to abstract pertinent information
     precludes consideration of issue on appeal. -- The failure to
     abstract information pertinent to an issue precludes the
     appellate court from considering the issue on appeal.

4.   Appeal & error -- even constitutional arguments raised for
     first time on appeal will not be considered. -- Even constitu-
     tional arguments being raised for the first time on appeal
     will not be considered.

5.   Parent & child -- termination of guardianship -- guardianship
     may be terminated if no longer necessary or for best interest
     of ward. -- Arkansas Code Annotated  28-65-401(b)(3) (Supp.
     1993) provides that a guardianship may be terminated if, for
     any reason, the guardianship is no longer necessary or for the
     best interest of the ward.  

6.   Parent & child -- termination of guardianship -- review of
     probate proceedings -- decision to terminate guardianship not
     clearly erroneous. -- Although probate proceedings are
     reviewed de novo on the record, the decision of the probate
     judge will not be disturbed unless it is clearly erroneous; in
     making that determination, the appellate court gives due
     regard to the opportunity and superior position of the trial
     judge to judge the credibility of the witnesses; where the
     probate court found appellee to be honest and forthright and
     was convinced that she has corrected the problems that she was
     having at the time the guardianship was established and was
     ready to assume motherhood and to rear the child as her own;
     and where the court-ordered drug screening and home study of
     appellee indicated that there was no evidence that she had
     taken any drugs, that appellee appeared to have a stable
     marriage, a mutually caring relationship with her stepchil-
     dren, and that the ward appeared happy and quite comfortable
     in his mother's care, the appellate court could not say that
     the probate court's decision to terminate the guardianship was
     clearly erroneous.

7.   Appeal & error -- record on appeal confined to what is
     abstracted -- argument not addressed. -- The record on appeal
     is confined to what is abstracted, and the appellate court
     will not consider arguments raised for the first time on
     appeal; where appellants' abstract of the guardianship-
     termination proceeding did not indicate that the probate court
     had erroneously considered a chancery-based custody statute in
     dismissing the self-proclaimed father, and where appellants
     raised the issue for the first time on appeal, the appellate
     court was unable to address the point.  


     Appeal from Madison Probate Court; John R. Lineberger, Probate
Judge; affirmed.
     Joanna P. Boyles, for appellants.
     F. Lewis Steenken, for appellee.

     John F. Stroud, Jr., Judge.
*ADVREP*CA8*                DIVISION I    




                                       CA 95-391
                                        
                                                    April 24, 1996     


VAUGHAN BENJAMIN HOOKS
and SANDRA CLARK GOODIER             AN APPEAL FROM MADISON COUNTY
                 APPELLANT           PROBATE COURT
                                     NO. P92-42                       
VS.
                                     HONORABLE JOHN R. LINEBERGER,
RONYA ANNETTE PRATTE                 PROBATE JUDGE
                 APPELLEE
                                     AFFIRMED





                      John F. Stroud, Jr., Judge.




     This appeal results from an order of the Madison County
Probate Court that terminated the guardianship of Jacob Aaron
Hooks, a minor, and returned him to the custody of his mother,
appellee, Ronya Annette Pratte.  The appellants are Vaughan
Benjamin Hooks, who claims that he is the natural father of Jacob,
and Hooks's mother, Sandra Clark Goodier, who served as Jacob's
guardian prior to the termination.  
     Appellant Hooks and appellee are Texas residents.  They have
never been married to each other but have lived together sporadi-
cally including the time period that Jacob was eight weeks old
until he was ten months of age.  In July 1992, appellee left Jacob
in the care of Hooks's mother, appellant Goodier, so that appellee
could obtain treatment for her cocaine addiction.  The following
October, appellant Goodier, with the consent of appellee and Hooks,
was appointed guardian of the person and estate of Jacob.  Several
months thereafter, appellee was seriously injured in a car accident
and was hospitalized for two months.  
     Appellee first sought termination of the guardianship in
January 1993 but later amended her petition to request a continu-
ance of the guardianship and visitation in her.  In February 1994,
appellee filed an amended petition to terminate the guardianship,
stating that her consent to the guardianship had been predicated on
her need to seek rehabilitation from chemical dependency; that she
understood that the guardianship would be voluntarily terminated
following her rehabilitation; that she has resolved her substance
abuse problem; that she is now married and part of a stable home
and family; and that the interests of Jacob would best be served by
terminating the guardianship and returning him to her.  Appellee
also stated in her petition that the paternity of Jacob had never
been determined by a court of competent jurisdiction.  Appellants
Goodier and Hooks filed separate responses that denied the
guardianship should be terminated.  They both also alleged that
Hooks is the natural father of Jacob and that the Texas birth
certificate confirms this.
     After a hearing on the merits of appellee's petition, the
probate court entered an interim order which held that paternity
had not been adjudicated in Hooks and therefore he could not be
included as a party.  The court also held, however, that, if his
paternity had been established in Texas, he could provide that
information to the court.  The court also ordered that a home study
and drug-screening test be performed on appellee.  The probate
court terminated the guardianship of Jacob after the receipt of the
home study and drug-screening test, finding that the circumstances
that had led to the letters of guardianship being issued had
changed to the extent that it would be in Jacob's best interest to
terminate the guardianship and to reunite Jacob with his mother,
the appellee.  
     On appeal, appellants make several arguments in support of
their contention that the probate court erred in dismissing
appellant Hooks as a party to the termination proceeding.  They
claim that the probate court's holding that an adjudication of
paternity was necessary in order for Hooks to participate in the
proceeding is clearly erroneous because Ark. Code Ann.  28-65-
207(b) (Supp. 1993) makes no distinction between a parent of a
legitimate child and a parent of an illegitimate child.  This
section provides in part that "notice of the hearing of the
application for the appointment of the guardian shall be served
upon ... [t]he parents of the alleged ... minor ...."  Appellants
argue that the court's order that appointed appellant Goodier as
guardian recognized Hooks as the natural father of Jacob and,
therefore, the doctrine of res judicata prevented the probate court
from questioning Hooks's status as a parent at the termination
proceeding.  
     The only argument appellants raised at the termination hearing
in support of their contention that an adjudication of paternity
was unnecessary was their contention that Hooks was listed as the
father on Jacob's Texas birth certificate.  Because no argument was
made concerning the court's earlier order or the doctrine of res
judicata at the hearing, we find this argument is being raised for
the first time on appeal.  It has long been held that the appellate
court will not consider arguments raised for the first time on
appeal.  See Kulbeth v. Purdom, 305 Ark. 19, 21, 805 S.W.2d 622,
623 (1991).
     Appellants admitted that there had never been any adjudication
of paternity but argued that it was not necessary because, under
Texas law, Hooks is considered the father if his name appears on
Jacob's Texas birth certificate.  The court stated that it would
allow Hooks to remain a party to the termination proceeding if he
could provide the court with any law to the effect that he would be
an appropriate party.  The court also stated that, if under Texas
law Hooks's name on the birth certificate was sufficient to
establish paternity, Hooks needed to file the birth certificate and
the statute with the court.  Although Hooks later filed a copy of
Texas Code Ann.  12.02(a)(4) (West 1989), with the court, which
did indicate a man is presumed to be the biological father of a
child if he consents in writing to be named as the child's father
on the child's birth certificate, there is no record that he filed
a copy of Jacob's birth certificate with the court.  We therefore
cannot say that the probate court erred in dismissing Hooks as a
party.  
     Appellants also contend that the probate court erred in not
making a determination of paternity.  We do not address the merits
of this contention, however, because appellants' abstract does not
show that the probate court was asked to make such a determination. 
It is fundamental that the record on appeal is confined to that
which is abstracted, and the failure to abstract information
pertinent to an issue precludes this court from considering the
issue on appeal.  Harvill v. Bevans, 52 Ark. App. 57, 60, 914 S.W.2d 784 (1996).
     In connection with their first point, appellants also contend
that the probate court violated Hooks' rights to equal protection
and due process as established by the United States Constitution
when it dismissed him from the termination proceeding.  Here again,
we find that these arguments were not raised before the probate
court.  Even constitutional arguments being raised for the first
time on appeal will not be considered.  Moore v. State, 323 Ark.
529, 543, 915 S.W.2d 284 (1996). 
     For their second point, appellants contend that the probate
court applied the wrong standard of proof in considering only
whether the guardianship was still necessary.  They assert that
this court's holding in In re Guardianship of Markham, 32 Ark. App.
46, 795 S.W.2d 931 (1990), requires that a petitioner must prove
that the termination of a guardianship is in the child's best
interest before the guardianship of a minor can be terminated.  
     In In re Guardianship of Markham, supra, the appellants had
voluntarily consented to an order appointing the appellee as the
guardian for their daughter and had asked the appellee to raise the
child.  The appellants later sought termination; however, the
probate court found that it was not in the child's best interest to
terminate the guardianship.  The appellants argued that it was
error not to terminate the guardianship because Ark. Code Ann.
 28-65-204 (1987) established a preference for a natural parent in
the appointment of the guardian.  On appeal, this court explained
that Ark. Code Ann.  28-65-401(b)(3) (Supp. 1989) governs a
proceeding to terminate a guardianship, that it allows the court to
consider the best interest of the ward in deciding whether to
terminate a guardianship, and that the rights of the natural
parents are not proprietary.  Our holding, however, should not be
interpreted as providing the only guideline a probate court can
consider in terminating a guardianship.  Arkansas Code Annotated
 28-65-401(b)(3) (Supp. 1993) provides that a guardianship may be
terminated if, for any reason, the guardianship is no longer
necessary or for the best interest of the ward.  
     In the case at bar, the probate court found that appellee had
presented sufficient evidence to show that the guardianship was no
longer necessary and that it would be in Jacob's best interests to
terminate the guardianship and to reunite him with his mother. 
Appellee testified that, when she entered the drug treatment
program, she asked appellant Goodier to help take care of her son
until she could get on her feet and could provide a stable home for
him.  Her testimony reflected that she has remained drug-free since
she left that program, which had been approximately twenty months
at the time of the hearing.  She also testified that she has been
happily married since October 1993 and helps her husband with work
in renovating apartments and cares for his two sons that live with
them.  She also testified that they have prepared a room for Jacob
next to hers, that Jacob has been to their house, and that his
guardian, Ms. Goodier, has not indicated that she has any concerns
about Jacob's staying with them.  She further testified that she
and Ms. Goodier have "gotten along" most of the time during the
course of the guardianship and that she has no problem with Ms.
Goodier visiting Jacob.  She further stated that she has been
voluntarily paying Ms. Goodier support since September 1993. 
Although Ms. Goodier disagreed that she should be terminated as
Jacob's guardian, she admitted that appellee has been sending her
money regularly since last September except for two months and that
appellee is not the same person as she was when she left Jacob with
her.  
     The court held that it found appellee to be honest and
forthright with the court and that she had convinced the court that
she has corrected the problems that she was having at the time the
guardianship was established and is ready to assume the motherhood
that she should have assumed earlier and to rear Jacob as her own
child.  Additionally, the drug screening and home study of appellee
ordered by the court indicated that there was no evidence that
appellee had taken any drugs and that appellee appeared to have a
stable marriage, a mutually caring relationship with her stepchil-
dren, and that Jacob appeared happy and quite comfortable in his
mother's care.  From our review, we cannot say that the decision of
the probate court to terminate the guardianship is clearly
erroneous.  Although probate proceedings are reviewed de novo on
the record, the decision of the probate judge will not be disturbed
unless it is clearly erroneous, and in making that determination,
we give due regard to the opportunity and superior position of the
trial judge to judge the credibility of the witnesses.  In re
Adoption of D.J.M., 39 Ark. App. 116, 121, 839 S.W.2d 535, 538
(1992).
     Appellants, for their final point, contend that the probate
court erred in applying Ark. Code Ann.  9-10-113(b) (Repl. 1993)
to the termination proceeding.  This statute provides that a
biological father, provided he has established paternity in a court
of competent jurisdiction, may petition the chancery court, or
other court of competent jurisdiction, wherein the child resides,
for custody of the child.  Appellants contend that the trial court
erroneously relied on this "chancery" statute for requiring an
adjudication of paternity in order to allow Hooks to participate in
the termination proceeding.  We are unable to address this point,
however, because appellants' abstract of the proceeding does not
indicate that the probate court considered this statute in
dismissing Hooks from the proceeding and appellants are raising
this issue for the first time on appeal.  As we have previously
held, the record on appeal is confined to what is abstracted, see
Harvill v. Bevans, 52 Ark. App. at 60, 914 S.W.2d  at 787, and we
will not consider arguments raised for the first time on appeal. 
Kulbeth v. Purdom, 305 Ark. at 21, 805 S.W.2d  at 623.
     Affirmed.
     Cooper and Robbins, JJ., agree.