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Hood v. Hood

Court of Appeals of Arkansas, Division I

May 18, 2016



          Oscar Hirby and Robert S. Tschiemer, for appellant.

          BART F. VIRDEN, Judge

         The Saline County Circuit Court appointed appellees Jimmy and Ruth Ann Hood (the Hoods) guardians of appellant Lindsey Nicole Hood's (Lindsey's) children, C.H. and H.H.[1] On appeal, Lindsey challenges the trial court's authority to continue a temporary guardianship beyond ninety days and argues that, even if she had consented to the guardianship, it should have ended immediately once she objected to it. We agree with both components of Lindsey's first point and therefore reverse. We do not reach the merits of her second argument that venue in Saline County was improper.

         I. Guardianships

         Arkansas Code Annotated section 28-65-218(a)(1) (Repl. 2012) provides in relevant part that, if the court finds that there is imminent danger to the life or health of the incapacitated person and that this requires the immediate appointment of a guardian, the court may, with or without notice, appoint a temporary guardian for the incapacitated person for a specified period, which period, including all extensions, shall not exceed ninety (90) days, and the court may remove or discharge him or her or terminate the guardianship.

         Subsection (a)(2)(A) provides that, if the incapacitated person is a minor, the initial period for the appointment of a temporary guardian shall be for a period not to exceed ninety (90) days. Subsection (a)(2)(B) provides that, on or before the expiration of the ninety-day period, the court may extend the temporary guardianship for an additional period not to exceed ninety (90) days if the court finds after a hearing on the merits that there remains imminent danger to the life or health of the minor if the temporary guardianship is not extended.

         Arkansas Code Annotated section 28-65-202(a)(1) provides that the venue for the appointment of a guardian shall be in the county of this state where the incapacitated person is domiciled. See, e.g., Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000) (venue was proper in county where child resided, rather than where the child resided after a temporary guardianship had been obtained). Our supreme court has held that, once a final order has been entered and an appeal taken, the question of venue, once put in issue, is not lost by continuing through a trial of the matter. Id.

         II. Procedural History

         On November 25, 2013, the Hoods filed a petition for emergency guardianship of C.H. and H.H. and attached an affidavit averring that Lindsey was addicted to prescription drugs and that both Lindsey and the Hoods' son, John, used the drug ICE; that Lindsey had spent $800 in EBT (electronic benefits transfer) funds within a couple of days; that a "homemade pipe" was found under Lindsey's side of the bed; that Lindsey and John had lost their jobs and were making ends meet by shoplifting; that both Lindsey and John had been arrested in connection with shoplifting; that the children had stopped attending Civitan School where they received therapy; and that C.H. had been found wandering unclothed near Congo Road.[2]

         The trial court granted the Hoods' petition the following day and scheduled a hearing for December 4, 2013. On December 3, 2013, Lindsey filed a motion for continuance, which was granted. The trial court rescheduled the hearing for December 17, 2013. On December 20, 2013, an "Agreed Order of Continuance" was entered stating, "This case shall be continued until the parties reset it for a full trial. The guardianship shall continue through the next trial." The order also awarded visitation with the children to Fields.

         On May 15, 2014, the Hoods filed a motion to set aside the agreed order because they alleged that Fields was permitting Lindsey to care for the children while she (the grandmother) worked twelve-hour shifts as a nurse. Attached to their motion was a document from the Arkansas State Police's Crimes Against Children Division in which the investigative agency found an allegation of suspected child maltreatment-"poison/noxious substance"-true with respect to C.H. and placed Lindsey's and John's names on the Child Maltreatment Central Registry. There is no indication whether the parents contested the agency's determination. Moreover, no hearing was ever held on the motion to set aside.

         On April 8, 2015, Lindsey filed an "Objection and Motion to Set Aside Order Filed November 26, 2013, for Dismissal or Termination of the 'Emergency' Temporary Guardianship in the Hoods, and for Return of the Custody of the Children to Lindsey Nicole Hood, Mother." Following a hearing with only arguments by the attorneys, the trial court entered an order on April 21, 2015, denying Lindsey's motion in part and continuing the case for a hearing on Lindsey's motion to set aside the guardianship. Lindsey filed a timely notice of appeal from that order.[3]

         III. Discussion

         Lindsey argues that the trial court had no authority or jurisdiction to continue the guardianship in the Hoods after ninety days had passed. We agree that the trial court acted contrary to the statute. The basic rule of statutory construction is to give effect to the intent of the legislature. State v. L.P., 369 Ark. 21, 250 S.W.3d 248 (2007). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the ...

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