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Morris v. Clark

Court of Appeals of Arkansas, Division I

January 31, 2018

ALICIA MICHELLE MORRIS APPELLANT
v.
JANNELLE MARIE CLARK APPELLEE

         APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35PR-09-63] HONORABLE LEON N. JAMISON, JUDGE

          Sandra Y. Harris, Attorney at Law, PLLC, by: Sandra Y. Harris, for appellant.

          One brief only.

          KENNETH S. HIXSON, Judge

         Appellant Alicia Michelle Morris is the biological mother of her son, J.M., who was born on April 24, 2007. On May 27, 2009, an order of permanent guardianship was entered appointing appellee Jannelle Marie Clark as J.M.'s guardian. On August 18, 2016, Alicia filed a motion to terminate the guardianship and for J.M. to be placed in her custody. On March 10, 2017, the trial court entered an order denying Alicia's petition.[1]

         Alicia now appeals from the trial court's order denying her petition to terminate the guardianship. For reversal, Alicia argues that the trial court misapplied the applicable guardianship statute, Ark. Code Ann. § 28-65-401(b)(3) (Repl. 2012), and that the trial court erred in failing to give weight to her fundamental right to the care, custody, and control of her child. We affirm.

         We review probate proceedings de novo, but we will not reverse a finding of fact by the trial court unless it is clearly erroneous. Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273. 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. We, however, give no deference to the trial court with respect to matters of law. Stautzenberger v. Stautzenberger, 2013 Ark. 148, 427 S.W.3d 17.

         The pertinent facts and procedural history are as follows. On July 21, 2007, when J.M. was almost three months old, Alicia signed a nonbinding document consenting to place the child in the custody of Jannelle, who is the child's cousin. Thereafter, J.M. resided in Pine Bluff with Jannelle and Jannelle's mother (Alicia's half-sister). Jannelle became the child's primary caregiver.

         On February 17, 2009, Jannelle filed a petition to be appointed J.M.'s guardian. In the petition Jannelle alleged that she had been providing for and caring for the child; that Alicia had not visited or provided support for the child; and that Alicia had criminal charges pending against her. Alicia filed a response, contesting Jannelle's petition. After a hearing, the trial court, on May 27, 2009, entered an order appointing Jannelle as J.M.'s permanent guardian subject to Alicia's reasonable visitation. For the next several years, J.M. remained in Jannelle's custody in Pine Bluff.

         Seven years later, on August 18, 2016, Alicia filed a petition to terminate the guardianship. In the petition, Alicia alleged that the prior criminal charges against her had been nolle prossed. Alicia further alleged that she lived in a suitable home in West Memphis raising her two older children, that she was gainfully employed, and that she was a fit parent. The petition also stated that Jannelle had not abided by the visitation order and had only allowed her only sporadic visitation with J.M. The petition further stated that, about a month earlier, Jannelle was homeless and had temporarily moved into Alicia's home with J.M. Finally, Alicia alleged that she and J.M. had bonded and established a strong parent-child relationship, and also that J.M was bonded with his two older siblings. Jannelle filed a response, requesting that Alicia's petition to terminate the guardianship be denied. The trial court subsequently held a hearing on the petition.

         Alicia testified that she lives with her two older sons and her boyfriend in West Memphis. Alicia stated that J.M. previously needed a guardian due to Alicia's criminal charges, but that the charges had been dropped and she had been in no further criminal trouble. Alicia stated that she is now stable, her life is in order, and she has full-time employment. Alicia stated that she had tried to visit her child regularly but that Janelle had denied her visitation. As a result, Alicia had only visited J.M. about ten times. Alicia testified that she wanted to be a mother to J.M., and asked that the guardianship be terminated.

         In support of her position that the guardianship should remain in force, Jannelle testified that she and J.M. had lived in Pine Bluff for several years, but that she had recently brought J.M. to West Memphis in an attempt to foster a relationship between J.M. and Alicia and the child's siblings. Jannelle denied ever being homeless, and stated that, after temporarily staying with Alicia, she and J.M. moved to a place in Memphis. Jannelle works in a nursing home in Memphis, and also works part-time every other weekend in Pine Bluff. When Jannelle works in Pine Bluff, she takes J.M. to stay with Jannelle's mother. Jannelle acknowledged that she had changed J.M.'s last name to that of Jannelle's ex-boyfriend, who had since gone to prison and been recently paroled. Jannelle denied withholding Alicia visitation with J.M., stating that she had no objection to Alicia visiting the child. However, Jannelle testified she wanted to remain J.M.'s guardian.

         J.M., who is now ten years of age, also testified. J.M. stated that he loves his mother, Alicia, as well as his older brothers. However, J.M. stated that he wanted to continue living with Jannelle and have visitation with Alicia.

         On March 10, 2017, the trial court entered an order denying Alicia's petition to terminate the guardianship. In the trial court's order, it made ...


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