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Sherland v. Sherland

Court of Appeals of Arkansas, Division IV

May 27, 2015

CHARIS SHERLAND APPELLANT
v.
TERRI SHERLAND APPELLEE

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT. NO. PR-2013-170. HONORABLE WILL FELAND, JUDGE.

Bailey & Oliver Law Firm, by: Frank H. Bailey, Sach D. Oliver, and T. Ryan Scott, for appellant.

Christopher R. Warthen, for appellee.

BART F. VIRDEN, Judge. GRUBER and WHITEAKER, JJ., agree.

OPINION

BART F. VIRDEN, Judge

Appellant Charis Sherland appeals from the Lonoke County Circuit Court's appointment of her mother, appellee Terri Sherland, as guardian of Charis's daughter, N.S. (DOB: 9-18-04). On appeal, Charis argues that (1) the current interpretation of Arkansas Code Annotated section 28-65-204(a) (Supp. 2013) is unconstitutional and does not acknowledge the presumption that a fit parent acts in the best interest of her child, (2) the trial court erred in determining that a guardianship was desirable because there was no evidence that the allegations of sexual abuse were true, and (3) the trial court erred in failing to consider the natural-parent preference because the court had not found that she was unqualified or unsuitable. We affirm.

I. Procedural History

On May 30, 2013, Terri Sherland petitioned for emergency ex parte guardianship of her granddaughter because Charis's live-in boyfriend, Brandon Brewer, was accused of sexually abusing the child. Terri alleged that the Arkansas Department of Human Services had advised her to keep N.S. in her custody and that the matter was being investigated by the local police and the Crimes Against Children Division of the Arkansas State Police. Terri further alleged that Brewer had a history of physically abusing Charis and that Charis was pregnant with Brewer's child. The trial court appointed Terri as temporary guardian of N.S. in June 2013. Following a hearing in October 2013, the trial court continued the guardianship because of concerns that Charis had expressed doubt regarding the allegations of sexual abuse, that Brewer was said to be at Charis's residence " more often than not," and that Charis continued to have a significant, ongoing relationship with Brewer. Following another hearing in June 2014, the trial court entered an order finding that the applicable guardianship statutes are not unconstitutional and that it was in N.S.'s best interest for Terri to be appointed guardian. From that order comes this appeal.

II. Guardianship Statutes and Standard of Review

Before appointing a guardian, the court must be satisfied that (1) the person for whom a guardian is prayed is either a minor or otherwise incapacitated; (2) a guardianship is desirable to protect the interests of the incapacitated person; and (3) the person to be appointed guardian is qualified and suitable to act as such. Ark. Code Ann. § 28-65-210 (Supp. 2013). The parents of an unmarried minor, or either of them, if qualified and, in the opinion of the court, suitable, shall be preferred over all others for appointment as guardian of the person. Ark. Code Ann. § 28-65-204(a).

Our appellate courts review guardianship proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Witham v. Beck, 2013 Ark.App. 351, 428 S.W.3d 537. 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. In cases involving children, we afford even more deference to the trial court's findings because our appellate courts have made it clear that there is no other case in which the superior position, ability, and opportunity of ...


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