Graham v. Matheny
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Cite as 2009 Ark. 481
SUPREME COURT OF ARKANSAS
No.
JENA GRAHAM,
08-975
Opinion Delivered 10-8-09
APPELLANT,
VS.
DARLENE MATHENY,
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, NO.
2004-1343, HON. COLLINS KILGORE,
JUDGE,
APPELLEE,
REVERSED AND REMANDED.
ROBERT L. BROWN, Associate Justice
This appeal raises one point for our consideration: whether the circuit judge employed
the right legal standard in this termination-of-guardianship case. We conclude that the judge
did not, and we reverse and remand.
On August 5, 2004, appellant Jena Graham (“Graham”), gave birth to a son, C.M.,
while incarcerated in the Arkansas Department of Correction. On the same day, with the
written consent of Graham and the baby’s father, Gary Matheny, C.M.’s paternal
grandmother, Della Darlene Matheny (“Matheny”), petitioned the circuit court for
guardianship of C.M. Her petition was granted by court order, and letters of guardianship
were issued on August 5, 2004.
On July 17, 2005, Graham was released from prison, and on October 25, 2006, she
filed a petition to rescind the guardianship. Graham’s petition asserted that she “is no longer
incarcerated and has made vast improvements in her life and therefore desires to have her son
Cite as 2009 Ark. 481
returned to her care and custody.” The petition further maintained that “a material change
in circumstances has occurred which warrants a change in guardianship to be awarded back
to [Graham].” On January 18, 2007, Matheny responded to the petition and denied that
there had been a material change in circumstances as it pertained to C.M. She also asserted
that it was not in C.M.’s best interest to terminate the guardianship.1
The circuit judge held a hearing on Graham’s petition on February 26, 2007.2 At the
hearing, the following witnesses testified: Matheny; Graham; Tommy Glanton, the Assistant
Executive Director of Recovery Centers of Arkansas, Graham’s employer; Sybil Ward, an
employee of Jefferson Comprehensive Care Systems and co-founder of Wards of Serenity,
a non-profit agency that counsels recovering addicts; Jennifer Bryant, Director of Keeping the
Faith, a battered women’s shelter, and Graham’s best friend; and Brenda Bryant, Graham’s
mother.
Because the only issue before this court is the legal standard to be used in terminationof-guardianship cases, we briefly summarize the hearing testimony. Matheny testified that
Graham had not done anything since her release from prison to cause her any concern and
that she believed C.M. should eventually be returned to Graham’s custody. She also told the
judge that she thought that because C.M. was so young, the guardianship should continue for
1
Graham filed a motion for default judgment on December 21, 2006, but no ruling
was obtained.
2
The circuit judge’s order states that the hearing was held on January 26, 2007, but
the court reporter’s transcript listed the date as Monday, February 26, 2007.
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the present time. Graham testified that she had been drug free following her release. She told
the judge that she was employed full time and had a suitable house where C.M. would have
his own room. The other witnesses testified that Graham appeared to have been rehabilitated
after prison.
Following the testimony, the circuit judge and counsel for Graham and Matheny
discussed the appropriate legal standard to use in guardianship-termination proceedings.
According to Graham, the purpose of the guardianship was for Matheny to care for C.M.
while she was incarcerated, and now the guardianship was no longer necessary. She
contended that it was in C.M.’s best interest to be reunited with his mother. Matheny’s
counsel responded that, according to this court’s precedent, it was Graham’s burden to prove
that it was in C.M.’s best interest to terminate the guardianship. She further claimed that
Graham failed to plead that it was in C.M.’s best interest to terminate the guardianship in her
original petition and likewise neglected to prove it during the hearing. Matheny’s counsel
then argued that the only change in circumstances Graham proved related to her life and not
to the circumstances of C.M.’s life. The circuit judge concluded the hearing by asking the
parties to brief the issue.
On May 2, 2007, the circuit judge entered an order in which he concluded that the
guardianship would remain in effect and that Graham should have visitation. The judge
specifically found that “Jena Graham appears to be rehabilitated” and that “Matheny’s primary
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concern about rescinding her guardianship over [C.M.] is that Jena Graham needs to be more
attentive to the child and spend more time with him.” After citing case law, the judge held:
1. While the testimony is uncontroverted that Jena Graham has rehabilitated herself,
the law provides that a change in Jena Graham’s circumstances is not sufficient to
modify custody and rescind this guardianship.
2. In order to rescind this guardianship, the Court must find that there has been a
material change in the child’s circumstances and that it would be in the best interests
of [C.M.] In this case, the law works to separate the child from a natural mother who
is fit to care for her child. However, there has been no material change in
circumstances in [C.M.’s] situation. Therefore, the guardianship will remain in effect.
A review hearing was set and, on November 11, 2007, the circuit judge heard
additional testimony from Graham, essentially to the effect that circumstances had remained
the same since the February hearing. Graham did tell the judge that she had missed two
visitations in that time and that she was still employed full time and was not using drugs. On
January 31, 2008, the judge entered a final, appealable order, denying Graham’s motion to
rescind the guardianship and setting a permanent visitation schedule for Graham.
Graham urges in her appeal to this court that she should not be required to show any
change in circumstances in order to have her son returned to her custody other than the fact
that she has been rehabilitated and is now a fit parent. She writes in her brief: “Where a
mother voluntarily gives up custody while she puts her own life back together, for the best
interest of the child, the law should only require that she must then come back into court and
prove she has changed her life such that she is a proper and fit person, once again, to be a
parent.” The appellee, Matheny, did not file a brief in the instant appeal.
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The standard of review in probate proceedings, which include guardianships, is wellsettled:
We review probate proceedings de novo, but we will not reverse a finding of
fact by the circuit court unless it is clearly erroneous. 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. When reviewing the
proceedings, we give due regard to the opportunity and superior position of the
probate judge to determine the credibility of the witnesses.
See, e.g., Smith v. Thomas, 373 Ark. 427, 431, 284 S.W.3d 476, 479 (2008) (citing Devine v.
Martens, 371 Ark. 60, 65, 263 S.W.3d 515 (2007)). It is also axiomatic that this court does
not give the same deference to the circuit judge with respect to matters of law. See, e.g.,
Freeman v. Rushton, 360 Ark. 445, 449, 202 S.W.3d 485, 487 (2005).
We begin our analysis by noting that all guardianship proceedings in Arkansas are
governed by statute. See Ark. Code Ann. §§ 28-65-101 to 28-65-603 (Repl. 2004 & Supp.
2007). According to the statutes, a guardian is “one appointed by a court to have the care and
custody of the person or of the estate, or of both, of an incapacitated person.” Id. § 28-65101(3) (Supp. 2007). The Arkansas General Assembly made clear that, in the case of original
guardianship actions with respect to children, natural parents enjoy a preference in the law.
Id. § 28-65-204(a). Nevertheless, this court has also long held that “any inclination to appoint
a parent or relative [as guardian] must be subservient to the principle that the child’s interest
is of paramount consideration.” See, e.g., Smith, 373 Ark. at 432, 284 S.W.3d at 479 (2008)
(quoting Blunt v. Cartwright, 432 Ark. 662, 669, 30 S.W.3d 737, 741 (2000)).
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Once a guardianship has been created, section 28-65-401 of the Arkansas Code
establishes the process for terminating that guardianship. That section provides:
(b) A guardianship may be terminated by court order after such notice as the court
may require:
(1)(A) If the guardianship was solely because of the ward’s minority, and either
the ward attains his or her majority or the disability of minority of the ward is removed
for all purposes by a court of competent jurisdiction.
(B) However, if the court finds upon a proper showing by substantial
competent evidence that it is in the best interest of the ward that the guardianship be
continued after the ward reaches majority, the court may order the guardianship to
continue until such time as it may be terminated by order of the court;
(2) If the ward becomes a nonresident of this state; or
(3) If, for any other reason, the guardianship is no longer necessary or for the
best interest of the ward.
Id. § 28-65-401(b). In addition to this statutory language, this court has said that we “equate
a petition to terminate a guardianship to a change of child custody among natural parents.”
See Smith, 373 Ark. at 432, 284 S.W.3d at 479, see also Crosser v. Henson, 357 Ark. 635, 643,
187 S.W.3d 848, 853 (2004).
In change-of-custody cases, this court has adopted a material-change-of-circumstances
standard, which places the burden on the non-custodial parent to prove “changed conditions
that demonstrate that a modification of the [custody] decree is in the best interest of the
child.” See, e.g., Lloyd v. Butts, 343 Ark. 620, 624, 37 S.W.3d 603, 606 (2001). However,
in both change-of-custody and termination-of-guardianship cases, this court has reiterated that
“the polestar remains the best interest and welfare of the child.” Id.; Smith, 373 Ark. at 433,
284 S.W.3d at 480 (“[I]n both custody and guardianship situations, the child’s best interest
is of paramount consideration. . ..”).
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The pivotal issue in this case is whether the circuit judge properly applied the materialchange-of-circumstances test to Graham’s termination-of-guardianship petition instead of the
statutory standard set forth under section 28-65-401(b)(3) that (1) the guardianship is no
longer necessary, or (2) termination is in the best interest of the child. We conclude that this
was error.
We turn then to an analysis of our case law. In 1979, this court decided a change-ofcustody case, Jones v. Strauser. 266 Ark. 441, 585 S.W.2d 931 (1979). In Strauser, the
appellant, Jones, and his wife divorced and agreed that their minor daughter should be placed
in the custody of her maternal grandparents, the Strausers, and the Strausers were awarded
custody of the child. The year after the custody order was entered, Mr. Strauser died, and
Jones petitioned the court to modify the custody decree and award custody of the child to
him. Jones urged that Mr. Strauser’s death was a change in circumstances and that it was in
his daughter’s best interest for him to be awarded custody. Jones specifically stressed that the
law awarded him a preference, as the natural parent, over Mrs. Strauser. The trial judge
found that it was in the best interest of the child to remain with her grandmother and denied
Jones’s petition.
This court affirmed and stressed that the best interest of the child was “the polestar in
every child-custody case.” Id. at 443, 585 S.W.2d at 932. We then added that “[o]rdinarily
it is true that, as between a parent and a grandparent, the law awards custody to the parent
unless he is incompetent or unfit to have custody of the child.” Id. We also found that while
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Jones’s consent to the original custody order did not cause him to forfeit his parental
preference forever, “its effect was so diminished that he bore the burden of showing a change
in circumstances subsequent to that award which required or justified a change in the custody
when considered from the standpoint of the child.” Id. We held that the judge’s finding that
it was in the best interest of the child to remain in the custody of Mrs. Strauser was not clearly
against the preponderance of the evidence.
In 1990, the Arkansas Court of Appeals relied on this court’s reasoning in Strauser in
a termination-of-guardianship case. See In the Matter of the Guardianship of Markham, 32 Ark.
App. 46, 795 S.W.2d 931 (1990). In Markham, Beth and Wayne Markham, biological parents
of L.R., formally consented to have Wayne’s aunt, Brenda Buck, and her husband, Randall,
appointed as guardians of L.R. Approximately six months after the guardianship order was
entered, the Markhams filed a petition to rescind the guardianship. During a hearing in the
trial court, the Markhams testified that the Bucks were only keeping L.R. until they could
“get back on their feet.” The judge also heard testimony about the child’s health and the
circumstances surrounding her life. Following the hearing, the judge declined to terminate
the guardianship.
The court of appeals affirmed and relied on the best-interest standard for the
termination of a guardianship as set out in section 28-65-401(b)(3), as well as language from
this court in Strauser. The court of appeals specifically held that the Markhams bore the
burden “to show that a termination of the guardianship would be in [L.B.]’s best interest” and
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further held that “the language of Ark. Code Ann. § 28-65-401(b)(3) indicates that the
termination of a guardianship for the best interest of the ward is a matter which lies within
the probate court’s discretion.” Id. at 50, 795 S.W.2d at 933. The court of appeals concluded
that there was evidence from which the trial judge could have determined it was in L.B.’s best
interest to remain in the care of the Bucks.
Six years later, the court of appeals considered another termination-of-guardianship
case with facts analogous to the instant case and seemed to clarify its holding in Markham. See
Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996). In Hooks, Ronya Pratte and
Vaughan Hooks had a child, J.H., out of wedlock. In July 1992, Pratte left J.H. in the care
of Hooks’s mother, Sandra Goodier, while she obtained treatment for her addiction to
cocaine. In October of the same year, Hooks and Pratte agreed to have Goodier appointed
as J.H.’s guardian.
In February 1994, Pratte petitioned the court to terminate the
guardianship and argued that she consented to it in order to obtain treatment but understood
that it would be voluntarily terminated when she was rehabilitated. The trial judge ordered
that a home study and drug-screening test be performed on Pratte, and, following the
completion of both, the court entered an order terminating the guardianship of J.H. The
judge specifically found that “the circumstances that had led to the letters of guardianship
being issued had changed to the extent that it would be in [J.H]’s best interest to terminate
the guardianship and reunite [him] with his mother.” Id. at 163, 920 S.W.2d at 26.
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Hooks and Goodier appealed, arguing that the trial judge erred in considering only
whether the guardianship was still necessary under the statutory standard and that Markham’s
holding required Pratte to prove that it was also in the best interest of J.H. to terminate the
guardianship. The court of appeals acknowledged its holding in Markham but said that it
“should not be interpreted as providing the only guideline a probate court can consider in
terminating a guardianship.” Id. at 165, 920 S.W.2d at 27. The court indicated that,
according to section 28-65-401(b)(3), “a guardianship may be terminated if, for any reason,
the guardianship is no longer necessary or for the best interest of the child.” Id. (emphasis in
original).
Next, in Crosser v. Henson, this court addressed the proper standard to use in
termination-of-guardianship cases. 357 Ark. 635, 187 S.W.3d 848 (2004). In Crosser, James
and Melissa Henson had a child, C.H., born in Mississippi, where the Hensons lived. After
C.H. was born, Melissa left James, and her mother and stepfather, Charles and Karen Crosser,
offered to help James care for C.H. The Crossers resided in Jonesboro. Subsequently, both
James and Melissa signed consent forms and agreed to the Crossers being appointed guardians
of C.H. The Arkansas probate court then entered an order naming the Crossers as C.H.’s
guardians.3 In April 2001, James obtained a divorce from Melissa in Mississippi, and the
Mississippi court granted him custody of C.H. In February 2003, James filed a motion to
3
This was a guardianship action because, despite the Henson’s separation, they were
still married.
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terminate the guardianship in Arkansas and also requested that the Arkansas court grant him
custody of C.H. The Crossers responded by filing a petition to adopt C.H.
The trial judge ruled that the 1998 guardianship was void ab initio because that court
lacked jurisdiction at that time under the Uniform Child Custody Jurisdiction Act. The judge
then granted James’s motion to terminate the guardianship and ruled from the bench that he
could not consider the best interest of the child unless the natural parent was unfit. The judge
also denied the Crossers’s petition to adopt C.H. On appeal, this court first overruled the
trial judge’s finding that the 1998 court lacked jurisdiction to enter the original guardianship.
We then proceeded to treat the case as a termination-of-guardianship case, as opposed to an
original child-custody case, as James had urged, and analyzed whether the trial judge used the
proper standard to determine whether to grant James’s motion to terminate the guardianship.
The Crosser court first discussed Lloyd v. Butts, which, as already described, was a
change-of-custody case. Id. at 641–42, 187 S.W.3d 848, 852 (citing Lloyd, 343 Ark. at 626,
37 S.W.3d at 607). In Lloyd, Michael Butts was awarded custody of two children when he
divorced Kimberly Butts. One of the children was Michael’s biological child, but the other
was determined to be the biological child of another man, Derek Lloyd. In the divorce
proceedings, the trial judge found that Kimberly and Derek were “nefarious and devious” and
were “unfit and unsuitable for custody of the children.” One year later, Kimberly and Derek,
who had since married, petitioned the court to modify the custody order. The judge found
that they were no longer unfit parents but also held that no material change in circumstances
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had occurred involving the children, and that it was in the children’s best interest to remain
in Michael’s custody.
This court affirmed that decision in Lloyd and restated the rule that “a judicial award
of custody should not be modified unless it is shown that there are changed conditions that
demonstrate that a modification of the decree is in the best interest of the child.” 343 Ark.
at 624, 37 S.W.3d at 606. This court also explained that the rule operates to “promote
stability and continuity in the life of the child, and to discourage the repeated relitigation of
the same issues.” Id. at 625, 37 S.W.3d at 606. Our opinion in Lloyd made clear that the
party seeking a modification of custody has the burden to show a material change in
circumstances and that “a change of circumstances of the noncustodial parent is not sufficient
to justify modifying custody.” Id. at 625–626, 37 S.W.3d at 607.
The Crosser court next turned to the Markham opinion and cited it for the proposition
that, by consenting to an original guardianship order, the natural parents bore the burden of
showing that a termination would be in the best interest of the child. 357 Ark. at 642, 187
S.W.3d at 853. We also said that we viewed the case “as a custody-modification case, since
the Crossers clearly had custody of [C.H.] by virtue of the 1998 guardianship.” Id. at 643,
187 S.W.3d at 853.
Our specific holding in Crosser, however, was that the circuit judge erred because he
believed that the natural-parent preference was binding and because he did not conduct a
best-interest analysis relative to the child. Id. The Crosser opinion concluded with the
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following statement: “Determining whether the child is to be better off with one party versus
another is precisely what the court should decide: The natural-parent preference and the
fitness of that parent are not the absolute determinants in custody-modification matters, as our
case law makes clear.” Id. The opinion, though, did not mention the statutory standard for
termination-of-guardianship cases enacted by the General Assembly in section 28-65401(b)(3).
Most recently, this court decided Smith v. Thomas, another case in which the natural
father petitioned to terminate a guardianship previously granted to the child’s maternal
grandparents. 373 Ark. 427, 284 S.W.3d 476 (2008). In Smith, Danny and Sandra Thomas
were named guardians of their grandson, B.S., after his mother, the Thomases’s daughter,
died. B.S.’s father, Bryan Smith, also petitioned the court to be named B.S.’s guardian, but
the judge found that it was in the child’s best interest to be placed with his grandparents
because Smith was a full-time college student and could not provide B.S. the stability he
needed. Over two years after the original guardianship was created, Smith moved to
terminate it. He contended that he had gotten married, was earning a stable income, and had
maintained continuous contact with B.S. throughout the guardianship period. The circuit
judge found that Smith was “qualified” but expressed concern about some other facts that
arose in the hearing, which related to Smith’s smoking, his failure to complete parenting
classes, and a domestic-battery incident involving him. Ultimately, the circuit judge denied
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Smith’s motion to terminate the guardianship because he found it was in B.S.’s best interest
to remain in the custody of the Thomases.
On appeal, we affirmed and held that the judge’s finding that it was in B.S.’s best
interest to remain in the custody of the Thomases was not clearly erroneous and the naturalparent preference was subservient to the best interest of the child. Id. at 434, 284 S.W.3d at
481. Again, this court did not cite to the statutory standard set out in section 28-65401(b)(3).
Graham, finally, directs this court to our decision in Devine v. Martens that “it is not
in a child’s best interest 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 that child’s
grandparents.” 371 Ark. 60, 74, 263 S.W.3d 515, 526 (2007). Devine, however, was not a
termination-of-guardianship case. Rather, in Devine, the circuit court had entered an original
guardianship in favor of the minor child’s grandparents, after finding the biological mother
to be unfit. This court’s holding in that case was that “the circuit court clearly erred in
finding Devine to be an unfit mother and removing [the child] from her care.” Id. at 72, 263
S.W.3d at 524. Devine does not support Graham’s position in the instant appeal because it did
not involve the proper legal standard to be applied in a termination-of-guardianship matter.
Because of the law set out above and by the trial court in the instant case, we conclude
that there is confusion regarding the standard to be used in termination-of-guardianship cases.
We take this opportunity to clarify the law on this point.
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First, it is clear to this court that the standard to be applied in termination-ofguardianship cases has been fixed by the General Assembly in section 28-65-401(b)(3), and
that standard is (1) whether the guardianship is no longer necessary, or (2) whether
termination is in the best interest of the ward. The statutory standard is crafted in the
disjunctive and is applicable to terminations involving wards who are adults and wards who
are children.
Second, when a guardianship has been established for a child, and a termination is
sought, the court must first focus on whether, under current facts, the guardianship is still
necessary. That, of course, is the first statutory standard.
Third, even if significant facts have changed relevant to the guardianship, such as Jena
Graham’s release from prison and her rehabilitation in the instant case, that does not
automatically decide the issue of whether the guardianship of a child is still necessary under
the first statutory standard. What is in the best interest of the child must always be examined
under the first standard to determine whether the guardianship should be terminated. Best
interest of the child is the paramount consideration in termination cases, as we said in Crosser
and Smith.
Fourth, unlike an original guardianship action, when the guardianship of a child has
been in effect for a period of time, the stability of the child’s environment and how well the
child is functioning in that environment become critical factors, in addition to other factors,
in deciding the child’s best interest under the statute.
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Fifth, a change-of-custody analysis using the material-change-of-circumstances standard
should not be done in termination-of-guardianship cases. Again, the proper standard has been
fixed by the General Assembly in section 28-65-401(b)(3). This court acknowledges citing
the material-change-of-circumstances standard in Crosser and Smith, which were both
termination-of-guardianship cases. But, again, using this change-of-custody analysis has led
to confusion, as evidenced by the instant case where the circuit judge referenced the best
interest of the child but concluded that changed circumstances for only the non-custodial
parent precluded him from terminating the guardianship.
We hold, therefore, that analyzing this case under the change-of-circumstances
standard as if the case were a child-custody matter is the wrong analysis to be performed by
the circuit judge in this termination case and that the proper analysis should be done under
the standard set out in section 28-65-401(b)(3). We reverse the order denying Graham’s
petition to terminate the guardianship and remand for further proceedings using the statutory
standard.
Reversed and remanded.
HANNAH, C.J., and DANIELSON, J., concur.
HANNAH, C.J., concurring. I concur in the majority’s decision that this case should
be reversed and remanded. I agree with the majority that the standard to be applied in
termination of guardianship cases is fixed by the General Assembly in Arkansas Code
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Annotated section 28-65-408(b)(3) (Repl. 2004). This section provides that a guardianship
may be terminated by court order for several reasons, and relevant to the present case, “[i]f,
for any other reason, the guardianship is no longer necessary or for the best interest of the
ward.” Ark. Code Ann. § 28-65-401(b)(3). This section provides in the disjunctive, that the
guardianship may be terminated where it is no longer necessary, or where for some other
reason it is no longer in the best interest of the ward that it continue. I also agree that
termination of guardianships may not be analogized to change-of-custody cases and that a
material change of circumstances analysis is not applicable in guardianship cases.
I write separately to set out my analysis and state what I believe the circuit court should
consider on remand.
Darlene Matheny filed a petition in the circuit court seeking
guardianship of C.M. C.M.’s mother Jena Graham was incarcerated, and his father Gary
Matheny was unable to care for his son. The petition includes affidavits filed by Jena and
Gary stating that a guardianship was necessary to protect the well-being of C.M. Neither the
petitions nor the affidavits reference termination. While Jena’s incarceration is mentioned in
the petition, there is no attempt to limit the guardianship to the period of incarceration.
Rather, the guardianship was declared necessary to provide C.M. with “care, residency and
health insurance, which the petitioners cannot obtain without legal guardianship of the
minor.”
Pursuant to Arkansas Code Annotated section 28-65-105 (Repl. 2004), a legal
guardianship may be established by the circuit court where a guardianship is necessary to
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promote and protect the well-being of a person.4 The circuit court must now consider
whether, in light of all the circumstances argued by the parties, if for any reason, the
guardianship is no longer necessary or for some other reason it is no longer in the best interest
of the ward that the guardianship continue.5 The circuit court must determine when the
purpose of the guardianship they established is no longer necessary.6
This court erred in Crosser v. Henson, 357 Ark. 635, 643, 187 S.W.3d 848, 853 (2004),
in stating that we view a petition to terminate a guardianship as “as a custody modification
4
I note that pursuant to Arkansas Statutes Annotated section 57-114 (1948), a guardianship
established because of incarceration of a parent terminated upon discharge from imprisonment unless the
parent consented that it continue. However, this statute was repealed in 1949 when the current language
now codified in section 28-65-401(b)(3) (Repl. 2004) was adopted. However, the current Arkansas
statutory scheme establishing guardianships over minors does not base guardianships on parental consent,
and if they are to be statutorily terminable upon withdrawal of consent, the General Assembly would have
to modify the existing statutes to so provide.
5
The parties have not raised or argued the question of whether the statutory scheme at issue
violates constitutional and common law parental rights to the custody and control of children. See Troxell
v. Granville, 530 U.S. 57 (2000); Payne v. Jones, 242 Ark. 686, 415 S.W.2d 57 (1967); see also In re
Guardianship of Williams, 869 P.2d 661, 667 (Kan. 1994) (stating that judicial question of what is best for
welfare of child never arises unless the parents are dead or declared unfit); In re Guardianship of Jeremiah T.,
976 A.2d 955, 963 (Me. 2009) (holding that guardianship must be terminated unless guardian proves
parent is unfit and continuation of guardianship is in best interest of minor). Further, the law establishes a
preference for the natural parent and that preference must prevail unless it is established that the natural
parent is unfit. Schuh v. Roberson, 302 Ark. 305, 306, 788 S.W.2d 740, 741 (1990).
6
I further note that the parties have not raised the issue or argued whether Graham, as a parent
who consented to the guardianship, and who was never found unfit, may by withdrawal of consent
establish that the guardianship must be terminated. See In re Guardianship of Mikrut, 858 P.2d 689, 693
(Ariz. Ct. App. 1993). My concern is the effect this decision will have, for example, on those called to
active military duty who are required to establish a guardianship for their minor children. They may be
quite shocked upon their return to discover that they must prove, not that they are back, but that
termination of the guardianship is in the best interest of their child.
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Cite as 2009 Ark. 481
case.”7 A guardianship is not analogous to a custody modification. Guardianships are
statutory and exist as defined by statute. Declaring termination of a guardianship analogous
to custody modification errantly brought custody’s material change of circumstances into the
analysis. The error in Crosser led to similar errors in Freeman v. Rushton, 360 Ark. 445, 451,
202 S.W.3d 485, 488 (2005); and Smith v. Thomas, 373 Ark. 427, 433, 284 S.W.3d 476, 480
(2008). The court of appeals applies the best-interest-of-the-child standard to the termination
of guardianships and expressly rejects material change in circumstances. Jones v. Scott, 92 Ark.
App. 85, 93, 211 S.W.3d 46, 52 (2005) (“The trial court’s reliance on the incorrect standard
[material change in circumstances] was clearly erroneous.”). However, neither this court nor
the court of appeals has applied the proper standard on termination of a guardianship set out
in the statute.8 Upon remand, the circuit court should be ordered to determine whether if
for any reason, the guardianship is no longer necessary or for some other reason it is no longer
in the best interest of C.M. that guardianship continue.
DANIELSON, J., joins.
7
In Crosser, the court relied on Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001),which is a
child custody case rather than a guardianship case.
8
If material change of circumstances were to be the standard to be applied in termination of
guardianship cases, the General Assembly would have to modify the statute to so provide.
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