IN THE MATTER OF THE GUARDIANSHIP OF W.L., A MINOR; DAVID LINEHAM, APPELLANT
SARAH RACHEL HYDE ET AL., APPELLEES
APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT. NO. 42P PR-2009-98. HONORABLE DAVID H. MCCORMICK, JUDGE.
Taylor & Taylor Law Firm, P.A., bye: Andrew M. Taylor and Tasha C. Taylor, for appellant.
Clark & Murdoch, P.A., by: Timothy W. Murdoch, for appellee.
RHONDA K. WOOD, Associate Justice. HANNAH, C.J., and DANIELSON, J., dissent.
RHONDA K. WOOD, Associate Justice.
Under our guardianship statutes, a court may terminate a guardianship if it is no longer necessary or if it is in the ward's best interest. We hold that a guardianship is no longer necessary when a fit parent who consented to a guardianship revokes consent. Here, the circuit court's ruling that the father, David Lineham, was unfit was clearly erroneous. Therefore, the court should have granted David's petition to terminate a guardianship to which he had earlier consented. We reverse the order keeping the guardianship in place and remand for the court to enter an order terminating the guardianship and placing W.L. in David Lineham's custody.
I. Relevant Facts
The relevant facts in this case were developed at hearings stemming from two petitions to terminate a guardianship. David Lineham and Sarah Hyde started dating in 2007. The two lived in a suburb of Washington D.C. in northern Virginia. Sarah became pregnant. Their child, W.L., was born in March 2008. At that time, David and Sarah lived with David's parents, but they moved into their own apartment in July 2009.
Sarah's parents, Dennis and Anna Hyde, also lived in the area. (The Hydes also
had another home in Arkansas). In early fall of 2009, the Hydes had guardianship papers prepared and they presented them to David and Sarah for consent. David testified that he and Sarah consented to the Hydes' exercising a guardianship over W.L. so that W.L. would be able to have access to health insurance and daycare under Dennis Hyde's military benefits. W.L. continued to reside with David and Sarah. In December 2009, the Logan County Circuit Court entered an order appointing the Hydes as guardians over W.L. The Hydes eventually moved to Arkansas in July 2010. W.L. moved with them and has lived with Dennis and Anna ever since.
David Lineham filed a petition to terminate the guardianship in December 2010, a year after the guardianship's inception and five months after the Hydes had moved to Arkansas. It took the circuit court over a year--until January 2012--to hold a hearing in the case. At this hearing, David testified that he never intended to give up his parental rights to W.L. He also testified that in September 2010 he had married Danielle Lineham, that both he and Danielle were employed, and that they shared a two-bedroom apartment. However, David also testified that he had visited W.L. only twice in Arkansas and that his telephone communication with her was sporadic. David also admitted that he had not provided the Hydes with any financial assistance since they had become W.L.'s guardians.
In April 2012, the circuit court entered an order denying David's petition and kept the guardianship in place. The court found that the guardianship was still necessary in order to maintain W.L.'s access to food, clothing, and financial support, which David had not provided. The court further found that David and his new wife Danielle " lack[ed] a meaningful relationship" with W.L. The court set a visitation schedule whereby David could visit W.L. in Arkansas and permitted W.L. to visit David in Virginia during the summer. David did not appeal from this order.
The present round of litigation started in October 2012 when Sarah, W.L.'s mother, filed a petition to terminate her parents' guardianship over W.L. David subsequently filed a second petition to terminate the guardianship. These motions were filed in the underlying guardianship case, which had been assigned to the probate division of the Logan County Circuit Court. Sarah also filed a petition for declaratory judgment and establishment of paternity, a case which had been assigned to the domestic-relations division of the same court. Eventually all parties--David, Sarah, and the Hydes (guardians)--agreed that Sarah would file a petition for custody in the domestic-relations case and that the case would then be consolidated into the probate matter. An order was entered to that effect in November 2012. David then filed a counterclaim for custody.
The circuit court held a two-day hearing in August 2013 to decide the consolidated petitions to terminate the guardianship and, if necessary, the petitions for custody. David testified that he and his wife still lived in Virginia. Since the last hearing, he had made eighteen trips to Arkansas to visit W.L. and had made multiple phone calls to her each week. David worked full-time
at a car dealership, making a gross salary of between $5000 and $5500 per month. David's wife, Danielle, testified that she also worked full-time and made around $35,000 per year. In essence, David addressed the court's concern from the previous hearing that he lacked significant contact with his daughter and did not have a meaningful relationship with her.
Sarah testified that since the last hearing she had had another child and later married the father, William Lawson. Sarah had sporadic residency, but now lived in a trailer on the Hydes' property in Arkansas. She said she paid rent to her parents by " working on the farm." Neither she nor her husband owned a vehicle. She had a suspended driver's license in Virginia. She did not have a job and testified that she had $1.16 in her bank account. Finally, Sarah admitted that she had two felony drug convictions for possession of heroin and Dilaudid. Those convictions were in Virginia, where she was also facing a probation-revocation hearing the following month.
The court also heard testimony from Dennis and Anna Hyde. They testified that David had still not provided any financial support for W.L. while they had been her guardians. Anna testified that David had done " all that he's been asked to do" and that " he's been an actively engaged father." She also stated that he had provided clothing and toys for W.L. and had developed a relationship with her. Despite this, both of the Hydes testified that they believed the guardianship was necessary in regards to David, but not as to their daughter, Sarah. In other words, they thought their guardianship should be terminated if the court were to return custody to Sarah; but if the court were to return custody to David, they thought their guardianship should stay in place.
After hearing the testimony, the court took the case under advisement and later issued a letter opinion and order. First, the court found that " from its previous ruling that David Lineham was determined to be unfit, although specific wording to that effect was not used." Second, the court found for the first time that Sarah was unfit and that David remained unfit. Finally, the court found that termination of the guardianship was not in W.L.'s best interest. Accordingly, the court kept the guardianship in place and denied and dismissed David and Sarah's petitions to terminate the guardianship and petitions for custody. David has appealed; notably, Sarah has not.
II. Termination of Guardianship
Guardianships are special proceedings that are governed by statute. Hetman v. Schwade, 2009 Ark. 302, 317 S.W.3d 559. Under the guardianship statute, a guardianship can be terminated " [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) (Repl. 2012). Termination-of-guardianship cases have been in a recent state of flux. We tried to bring some sense to this area of the law in Graham v. Matheny. However, while the Graham court acknowledged that termination-of-guardianship cases were governed by a disjunctive statute, it ...