Amended March 11, 2016.
FROM THE SALINE COUNTY CIRCUIT COURT. NO. 63PR-14-627.
HONORABLE ROBERT HERZFELD, JUDGE.
F. Valley Esq. P.A., by: James F. Valley, for appellant.
Lancaster Law Firm, PLLC, by: Clinton W. Lancaster and Lori
D. Howard, for appellees.
T. WHITEAKER, Judge. KINARD and HIXSON, JJ., agree.
PHILLIP T. WHITEAKER, Judge
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
initially filed a joint petition to be appointed the
guardians of the person and estate, along with her husband,
William Rutland. 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
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
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 ...