FROM THE JEFFERSON COUNTY CIRCUIT COURT [N O . 3 5 PR - 17 -
2 5 7 ] HONORABLE WILLIAM BENTON, JUDGE.
& Co., PLLC, by: Tim Cullen, for appellant.
D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for
LARRYD. VAUGHT, JUDGE.
appeal arises from Sarah Howard Jenkins's petition for
guardianship over the person and estate of her mother, Vivian
Howard. Vivian appeals the Jefferson County Circuit
Court's order requiring Sarah and her sister Risie Howard
to work together to immediately obtain a professional
evaluation of Vivian's medical condition. We affirm the
circuit court's order.
is ninety-two years old. She is deaf and partially blind,
uses a wheelchair, and has been cared for in her home by her
daughter Risie since 2012. In July 2017, Vivian's
daughter Sarah filed a petition for guardianship of the
person and estate of Vivian, citing Vivian's declining
health and inability to manage her finances and care. Sarah
alleged that, while her sister Risie had been living with
their mother, Risie had transferred a significant amount of
Vivian's money to Risie's personal checking account,
directed that numerous payments be made from Vivian's
accounts for Risie's expenses, and failed to properly
care for Vivian. Vivian filed a motion to dismiss on which
the court never ruled.
original guardianship hearing was set for September 12, 2017,
but was continued on a motion filed by Vivian. At the
subsequent hearing, held on February 7, 2018, Vivian argued
that the petition should be denied because the statutorily
required medical evaluation had not been performed. The court
stated that the argument was premature. Dr. Robin Perry
testified that she has been treating Vivian for approximately
two years. Vivian's attorney objected that Dr.
Perry's testimony should be excluded pursuant to the
doctor-patient privilege, which Vivian had not waived. The
court took the argument under advisement. Dr. Perry testified
to examining Vivian on March 21, 2017, and testified to
Vivian's medical conditions, including moderate-to-severe
age-related dementia. Dr. Perry's professional evaluation
was entered into evidence as petitioner's exhibit 1.
testified about the events giving rise to her guardianship
petition. During Sarah's testimony, the court noted the
time of day and stated that it was clear that the hearing
could not be completed in the time remaining and that it
would need to be continued. The court ordered that Vivian
remain in Risie's care until the next hearing but said
that the rest of the family should have access to Vivian. The
court then noted that both the court and the bailiff had
concerns about Vivian's current medical condition and
The court security officer is concerned about her. I am
concerned about her. I want her taken and evaluated and I
want a report back on whether she needs to remain where she
is at on Second Street in her home or does she need to be
placed in an assisted living facility or a medical wing of a
hospital. Based on what I've heard so far, what I see and
the court's bailiff's concerns observing her, I'm
concerned about her and I want this done. So I want Ms.
Jenkins and Ms. Risie Howard, I am appointing both of you to
see that your mother gets to a doctor. And if you want to use
Dr. Perry, let's just use Dr. Perry.
court continued the hearing and issued a written order
requiring the sisters to obtain a professional medical
evaluation on Vivian the following day, February 8. The
court's order required that the evaluation address
Vivian's medical condition(s) and provide recommendations
as to her future care, including but not limited to continued
care at home, full-time nursing-home care, or assisted-living
care. Vivian filed a notice of appeal stating that she was
immediately appealing this order pursuant to Rule 2(a)(12) of
the Arkansas Rules of Appellate Procedure-Civil.
review probate proceedings de novo, but we will not reverse a
finding of fact by the circuit court unless it is clearly
erroneous. Donley v. Donley, 2016 Ark. 243, at 6,
493 S.W.3d 762, 766 (citing 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. at 6, 493 S.W.3d at 766.
When reviewing the proceedings, we give due regard to the
opportunity and superior position of the circuit court to
determine the credibility of the witnesses. Id., 493
S.W.3d at 766. However, we give no deference to the circuit
court on matters of law. Freeman v.
Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005).
Vivian has appealed only the order requiring her to undergo a
professional medical evaluation, her first point on appeal
attacks the court's subject-matter jurisdiction over the
entire case and seeks dismissal of Sarah's guardianship
petition. Vivian claims that, because a professional
evaluation was not attached to the petition for guardianship,
the court had no power to hear the matter or issue the order
from which she appeals. She presents the issue as one of
subject-matter jurisdiction. We disagree.
Sarah has fully complied with the statutory
requirements for obtaining a guardianship is not a
jurisdictional issue, and this challenge is not properly
before us for appellate review. Vivian relies heavily on
Keenan v. Peevy, 267 Ark. 218, 235-36, 590 S.W.2d
259, 269 (1979), in which the Arkansas Supreme Court held
that a probate court lacked subject-matter jurisdiction to
grant a petition for guardianship that failed to allege that
the person over whom the guardianship was sought suffered
from any form of mental incapacity. Vivian did not raise lack
of subject-matter jurisdiction below, and she never obtained
a ruling from the circuit court on the issue. While
jurisdictional issues can be raised for the first time on
appeal, the Arkansas Supreme Court has also explained that
"it is only when the lower court lacks jurisdiction in
any and all circumstances that the challenging party will be
excused from objecting to the jurisdiction in the trial
court." Parker v. Sebourn, 351 Ark. 453, 456,
95 S.W.3d 762, 763 (2003). This distinction can be
instructive in understanding the holding in Keenan,
which was one of the rare cases in which the lower court
lacked jurisdiction in any and all circumstances (i.e., there
was no circumstance in which the circuit court would have had
authority under the statute to enter a guardianship over a
person who had only a ...