Bryan K. Smith v. Danny Thomas and Sandra Thomas
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DIVISION III
CA061343
BRYAN K. SMITH
October 31, 2007
APPELLANT
V.
DANNY THOMAS and
SANDRA THOMAS
APPELLEES
APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
[NO. PR2003457]
HON. LINDA P. COLLIER,
CIRCUIT JUDGE
AFFIRMED
Bryan K. Smith, the natural father of a minor child, BS, appeals from an order of the
Faulkner County Probate Court denying his petition to terminate the guardianship held by
the maternal grandparents, Danny and Sandra Thomas, over the child. On appeal, Smith
argues that the trial court’s decision to deny his petition was clearly erroneous and violated
his dueprocess rights. We affirm.
BS was born out of wedlock on July 31, 2003. Apparently, Smith and BS’s mother,
Dandra Thomas, did not live together at the time of the child’s birth or at any time thereafter.
When BS’s mother died on December 27, 2003, Danny and Sandra Thomas almost
immediately petitioned to be appointed BS’s guardians. The Thomases actually served Smith
with the guardianship petition at their daughter’s funeral. Smith counterpetitioned for
custody. At the time, however, Smith was a college student who had availed himself of only
limited contact with his child. The Thomases were granted a permanent guardianship on
January 9, 2004. The trial court specifically found that Smith could not “provide the stability
which is needed for this child at this point in his life.”
The parties returned to court mere months later pursuant to the Thomases’ petition to
limit Smith’s visitation. They based their petition on Smith’s failure to show them sufficient
“respect.” Smith counterpetitioned to terminate the guardianship. After a hearing, the trial
court again found that Smith could not provide BS with “stability,” noting that he was still
a fulltime student while he was employed fulltime. The trial court ordered that Smith be
“ready next summer to do what you have to do.” The trial court also ordered that Smith
attend parenting classes as the Thomases had requested.
On March 9, 2006, Smith again petitioned to terminate the guardianship. By this
time, he had married, established a household, was no longer a student, and had secured full
time employment. He also completed some parenting classes and had regularly visited his
child. The child, however, was thriving in the care of his guardians. Relying on Freeman
v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005), the trial court found that, even though
Smith was “qualified” to parent his child, best interest dictated that BS remain with his
guardians.
Smith first argues that the trial court’s decision to deny his petition to terminate
the guardianship was clearly erroneous. Citing Arkansas Code Annotated section 2865204
(Repl. 2004), he notes that, having found him to be a person “qualified” to be BS’s guardian,
the trial court erred in failing to give him the statutory preference afforded natural parents.
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He notes further that, since the last hearing, he has “discharged his duties and obligations as
a parent,” driven more than 28,800 miles to exercise his visitation, become gainfully
employed with the Arkansas Department of Human Services as a familysupport specialist,
and married, which would afford BS a twoparent household. Furthermore, Smith contends
that this case is distinguishable from Freeman v. Rushton, supra, the authority relied on by
the trial court, in that Freeman did not have the same level of contact with his child that he
has had with BS. Finally, citing Arkansas Code Annotated section 2865401 (Repl. 2004)
and Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000), Smith acknowledges that the
best interest of the child standard applies to the termination of guardianships. Nonetheless,
he argues, in essence, that the guardianship can also be terminated when it is no longer
necessary, as in this case. We do not find these arguments persuasive.
This court reviews probate proceedings de novo, but we will not reverse a decision
of a trial court unless it is clearly erroneous. Id. The primary consideration in deciding
whether to terminate the guardianship of a minor child pursuant to Arkansas Code Annotated
section 2865401, is best interest of the child. Crosser v. Henson, 357 Ark. 635, 187
S.W.3d 848 (2004).
We are unwilling to say that the trial court’s refusal to terminate the guardianship was
clearly erroneous. First, the instant case does not involve the initial selection of a guardian.
Accordingly, the naturalparent preference stated in Arkansas Code Annotated section 2865
204(a) is inapplicable. Crosser v. Henson, supra. Second, and more importantly, our case
law has equated the termination of a guardianship to a change of custody among natural
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parents. See In re Guardianship of Markham, 32 Ark. App. 46, 795 S.W.2d 931 (1990); see
also Crosser v. Henson, supra. Accordingly, we note that it is undisputed that BS has been
well taken care of by his guardians and has thrived in that environment. Under those
circumstances, we hold that it was not clearly erroneous for the trial court to refuse to
terminate the guardianship.
We are mindful that, while this case was pending but before we took it under
submission, our supreme court handed down Devine v. Martens, ___ Ark. ___, ___S.W.3d
___ (Sept. 27, 2007). In Devine the supreme court stated that “it is not in a child’s best
interests to take custody from a natural parent who has rectified all issues relating to his or
her fitness.” While this holding seems to equate best interest of the child with his or her
return to a natural parent who has rectified unfitness issues, we decline to apply this holding
to the case at bar. In the first place, Devine involved the initial preference in establishing a
guardianship, not the termination of a guardianship of substantial duration as in the case at
bar. Secondly, although the trial court pronounced Smith “qualified” to parent his child, at
the same time it expressed reservations about his credibility. Much of Smith’s case depended
upon his testimony concerning how he would be able to care for his child, which would
count for naught without the trial court finding him credible.
For his second point, Smith argues that his dueprocess rights were violated when the
trial court refused to terminate the guardianship. He asserts that giving custody of BS to
grandparents destroys “any pretense of a normal parentchild relationship and eliminates
nearly all of the natural incidents of parenthood.” However, it is not apparent from Smith’s
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brief that he actually raised this argument to the trial court. Accordingly, we decline to
consider this point because it is settled law that we will not address arguments, even those
with a constitutional dimension, for the first time on appeal. Hooks v. Pratte, 53 Ark. App.
161, 920 S.W.2d 24 (1996).
Affirmed.
BIRD and GRIFFEN, JJ., agree.
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