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Rutland v. McWhorter

Court of Appeals of Arkansas, Division II

March 9, 2016

BERNICE RUTLAND, APPELLANT
v.
WARREN MCWHORTER AND ANGELA MCWHORTER, APPELLEES

         Counsel Amended March 11, 2016.

          APPEAL FROM THE SALINE COUNTY CIRCUIT COURT. NO. 63PR-14-627. HONORABLE ROBERT HERZFELD, JUDGE.

         James F. Valley Esq. P.A., by: James F. Valley, for appellant.

         The Lancaster Law Firm, PLLC, by: Clinton W. Lancaster and Lori D. Howard, for appellees.

         Robert Leo Herzfeld

         PHILLIP T. WHITEAKER, Judge. KINARD and HIXSON, JJ., agree.

          OPINION

Page 723

          PHILLIP T. WHITEAKER, Judge

         This case involves a guardianship petition. The appellant, Bernice Rutland, is the paternal grandmother of S.M. and A.M. She filed a petition for guardianship of both grandchildren. The appellees, Angela and Warren McWhorter, are the parents of the children. The circuit court denied the guardianship petition. Rutland appeals the Saline County Circuit Court order, raising several points on appeal. We find merit to Rutland's contention that the trial court improperly weighed the credibility of the evidence in granting appellees' motion to dismiss and reverse on this point. Because we hold that the trial court improperly weighed credibility in reaching its decision on the appellees' motion to dismiss and reverse on that basis, we need not reach the merits of her other arguments.

          I. Procedural History

         Rutland initially filed a joint petition to be appointed the guardians of the person and estate, along with her husband, William Rutland.[1] The petition alleged that S.M. and A.M. were incapacitated by reason of their minority, and that the guardianship was necessary to protect the best interest of the children. In essence, Rutland asserted that the parents were consumed with their own marital problems and that the children's needs had become

Page 724

secondary. The petition further alleged that S.M. had been diagnosed with ADHD without a proper evaluation; that the parents had been overmedicating S.M. with ADHD medication in an effort to decrease her activity level and make her more docile and compliant; and that S.M. was suffering adverse side effects from the medication. The McWhorters answered, denying that a guardianship was necessary and further asserting that S.M.'s diagnosis was made after an evaluation by a physician and that the child's demeanor and attitude had improved after being placed on the medication.

         A hearing was held on the petition on March 18, 2015. Rutland presented testimonial evidence that Warren, the father of the children, had engaged in extramarital affairs, had received a DWI, and had been terminated from his job. As a result of Warren's behavior, Angela, the mother of the children, was depressed and losing focus on the children. Rutland identified specific occasions where this lack of focus to the children was detrimental, including (1) an incident wherein A.M. chased S.M. with an aerosol spray can; (2) an incident involving A.M. having access to a screwdriver; (3) allegations of inadequate food within the home and the malnourished appearance of S.M.; (4) incidents of leaving the home unlocked at night; and (5) incidents of not always properly placing the children in appropriate car-seat restraints. With regard to S.M. and medication, Rutland took issue with the ...


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