APPEAL FROM THE HOWARD COUNTY CIRCUIT COURT. NO. PR-2006-46. HONORABLE TED CAPEHART, JUDGE.
Cross, Gunter, Witherspoon & Galchus, P.C., by: Misty Wilson Borkowski and Abtin Mehdizadegan, for appellants.
Jason Horton Law Firm, by: Jason Horton, for appellee.
JOHN MAUZY PITTMAN, Judge. GLADWIN, C.J., and WYNNE, J., agree.
JOHN MAUZY PITTMAN, Judge
Appellants, Karina Torres and Carlos Rocha, appeal from an order denying their petition to terminate a 2006 order that granted guardianship over appellants' child to appellee, Theresa Jones. Appellants argue that the 2006 guardianship order was improperly entered because various statutes were not complied with; that the trial court applied the guardianship statute in an unconstitutional manner by ignoring appellants' rights, as fit parents, to the care of their child by requiring them to prove that termination of the guardianship was
in the child's best interest; and that the trial court erred in not terminating the guardianship because they did not partially abandon the child, as found by the court, and because they demonstrated that the reason for the guardianship no longer existed. We affirm.
We review guardianship proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273. 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. Id. 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. Id.
Viewed in light of this standard, the record shows that both of the appellants, and appellee's husband (appellant Rocha's brother), are Mexican citizens residing illegally in the United States. Appellee is an American citizen employed as a translator. Appellants arrived in the United States in January 2000. Appellee developed a close relationship with appellants and was sheltering them in her own home at the time that appellant Karina gave birth to C.R. in October 2000. Appellee regarded appellants and C.R. as her children, staying extremely involved with the family. C.R. moved in with appellee when he was four years old and has resided there since, with appellee making medical and educational decisions regarding his care. This was done with the consent of appellants, and a formal guardianship order was entered in 2006. The stated purpose of the order was to provide proper care for C.R. because his parents did not speak English, and its duration was to be until C.R. reached the age of eighteen. The parties proceeded under this order amicably until 2013, when they had a falling out and appellants filed a petition to terminate the guardianship.
During the seven years that he resided with appellee, C.R. developed a parent-child relationship with appellee, whom he calls Mom. Giving deference to the trial court's credibility assessments, the record shows that appellants remained in contact with C.R., coming to appellee's home on holidays and attending C.R.'s sporting events, but their relationship with him, although familial, was not parental. In contrast, appellants' relationship with their younger son, E.R., was parental; E.R. remained in their home, was raised and cared for by them, and communicated with them in Spanish. In contrast, C.R. has been living in another town with appellee; he does not speak Spanish, and appellants do not speak English.
Collateral Attack on 2006 Guardianship Order
Appellants advance several arguments constituting collateral attacks on the 2006 guardianship order. That order was not appealed from, and appellants' arguments were not made below or ruled on by the trial judge in the current proceeding. Generally, judgments are not subject to collateral attack unless they are void on the face of the record or are issued by a court lacking jurisdiction. Rose v. Harbor East, Inc., 2013 Ark. 496, 430 S.W.3d 773. They cannot be collaterally attacked for mere error or irregularity. Here, there is no question that the 2006 court's jurisdiction was proper, and the arguments, presented for the first time on appeal, are addressed to alleged errors or irregularities that depend upon findings of fact that were never made ...