IN THE MATTER OF THE GUARDIANSHIP OF E.M.R. AND D.C.R., MINORS
v.
FRANKLIN REARDON AND MARLA REARDON APPELLEES CHRISTINE HARTMAN APPELLANT
APPEAL
FROM THE FRANKLIN COUNTY CIRCUIT COURT [NO. 24-OPR-13-73]
HONORABLE GORDON "MACK" MCCAIN, JR., JUDGE.
Gean,
Gean & Gean, by: Michael Pierce, for appellant.
Law
Offices of Craig L. Cook, by: Nathan E. Roop, for appellees.
ROBIN
F. WYNNE, Associate Justice
Christine
Hartman (now Smyth) appeals from the Franklin County Circuit
Court's order denying her petition to terminate the
guardianship of her two minor children, E.R. and D.R. She
argues on appeal that the circuit court was clearly erroneous
in applying the best-interest-of-the-child standard as
opposed to determining the fitness of the natural mother; not
finding her to be a fit parent; and failing to determine
whether the guardianship's original function remained, as
required by Arkansas Code Annotated section 28-65-401.
Furthermore, appellant argues that even assuming arguendo
that the correct standard was "best interest," the
circuit court was clearly erroneous in finding that it would
not be in the best interest of the minor children to be
placed with their natural mother. We reverse and remand with
instructions for the circuit court to enter an order
terminating the guardianship.
The
guardianship of E.R., born in 2003, and D.R., born in 2005,
arose when appellees Marla and Franklin Reardon, the paternal
grandparents, filed a petition for emergency and permanent
guardianship in August 2013 after appellant's husband,
Sam Hartman, was charged with the sexual abuse of E.R. The
court entered an ex parte order for emergency temporary
guardianship.[1] Appellant filed a motion to dismiss the
petition for guardianship and an alternative answer in which
she denied the material allegations in the petition.
Following a hearing, the court granted the Reardons a
permanent guardianship, finding as follows:
That probable cause existed at the time of the entry of the
Ex Parte Order for Emergency Custody and probable cause
continues to exist. Specifically, the Court finds that
Respondent Christine Hartman has subjected the minor child
[E.R.] to Sam Hartman's family and homes of his family
members in Logan County. The Court takes notice that Mr.
Hartman is facing charges of Rape, a class Y felony for
engaging in deviate sexual activity with the minor [E.R.] for
a period of time from January 1, 2011 until May 6th, 2013,
which was during the course of the marriage with Respondent
and Mr. Hartman. Mr. Hartman is also facing charges of
Tampering with Physical Evidence, Third Degree Assault on the
Respondent, and Interfering with Emergency Communication 1st
Degree.[2] Additionally, the Court finds that Mr.
Hartman's family has inappropriately tried to influence
the minor child and the court has great concern over the
minor children having contact with his family. The minor
child testified in court that the situation was troubling her
and she felt more safe at the Petitioner's residence.
The
court further found that it was in the best interest of both
children for the guardianship to be granted. No finding
regarding the parental fitness of appellant was made.
Appellant was awarded standard unsupervised visitation to
take place at the home of her mother, Debra Smyth, with
instructions that there was to be no contact between the
children and Sam Hartman or his family.
On
January 24, 2017, appellant filed a petition to terminate the
guardianship. She alleged that since the guardianship order
had been entered there had been "material changes in
circumstances where it is currently now in the best interest
of the minor children to be with their biological mother,
[appellant]"; that she was fit and appropriate to care
for her children; and that the circumstances had changed such
that she had filed for divorce and her husband was currently
in the Arkansas Department of Correction. A hearing was held
on November 14, 2017. At the hearing, the parties agreed that
there had been no finding of unfitness as to appellant in the
permanent guardianship order. The court asked, "Is this
agreed then that what we are going to be looking at is that
Mom needs to set out why things are different than they were
as stated in that 2013 order?" Appellant's counsel
responded, "We intend to set that out. I believe that
the court could also determine whether she is fit or unfit in
this case, but we intend to present both."
At the
conclusion of the evidence, the court ruled from the bench
that the petition to terminate the guardianship would be
denied. The court entered an order denying appellant's
petition to terminate guardianship, adopting in full the
statements of the Reardons' counsel in closing argument
at the hearing (attached to the order as an exhibit and
incorporated therein), and setting forth additional findings.
The court found that "the original order dealt with
Petitioner's failure in allowing Mr. Hartman's family
to have access to her daughter, with the crux being that she
had exhibited poor judgment and did not prioritize her
children." The court found that "the
Petitioner's lack of prioritizing these children and poor
judgment was the reason for originally granting this
guardianship and those reasons still exist."
Specifically, the court faulted appellant for the length of
time it took her to get divorced, [3] which the court attributed
to her continuing to choose her husband over her children
until his appeals had been exhausted; the fact that she had
recently moved into her mother's four-bedroom house,
which raised "concerns regarding whether the Petitioner
could herself, provide reasonable accommodations for these
children"; her testimony regarding having had issues in
the past concerning whether she believed E.R. and whether she
had anger at E.R.; and for seeking out parenting education
from someone certified in the age group of her youngest
child, not the ages of E.R. and D.R. In addition, regarding
the second prong of section 28-65-401(b)(3), the circuit
court found that the children had flourished in their
grandparents' care and that "it is not in the best
interest of these children to change things mid-stream and
return them to a situation that hurt them before." In
its analysis of the best interest of the children the court
cited Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d
273, a guardianship case that has been overruled, and
Bamburg v. Bamburg, 2014 Ark.App. 269, 435 S.W.3d 6,
a custody-and-visitation case between ex-spouses. This appeal
followed.
We
review probate proceedings de novo, but we will not reverse a
finding of fact by the circuit court unless it is clearly
erroneous. In re Guardianship of W.L., 2015 Ark.
289, 467 S.W.3d 129. 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. 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.
Arkansas
Code Annotated section 28-65-401(b)(3) (Supp. 2017) provides
that "[a] guardianship may be terminated by court order
after such notice as the court may require . . . [i]f, for
any other reason, the guardianship is: (A) [n]o longer
necessary; and (B) [n]o longer in the best interest of the
ward."[4] Here, the circuit court found that neither
requirement of the statute had been met and that the
guardianship should remain in place.
The
circuit court did not make a finding of unfitness when it
granted the permanent guardianship in 2013 or when it denied
the petition to terminate the guardianship. The Reardons
argue that the court made a "de facto" finding of
unfitness in this case. Specifically, they point to the
court's statements from the bench that, going back to the
beginning of this case, appellant had shown "a complete
disregard for parental responsibility." However, they
cite no authority for such a finding and we decline their
invitation to recognize a "de facto" finding of
parental unfitness. In Guardianship of W.L., 2015
Ark. 289, 467 S.W.3d 129, this court rejected the circuit
court's reasoning that, while it had not expressly found
the father to be unfit, such a finding had been made without
the use of the word "unfit." This court held that
the circuit court's finding of unfitness was clearly
erroneous, concluding that "the circuit court could not
retroactively declare [the father] unfit." In re
Guardianship of W.L., 2015 Ark. 289, at 11, 467 S.W.3d
at 135. Then, in Donley v. Donley, 2016 Ark. 243,
493 S.W.3d 762, this court addressed a finding of unfitness
of the natural mother in a temporary guardianship, which was
superseded by the entry of an agreed permanent guardianship
that did not contain a finding of unfitness. We held that the
mother was a fit parent and that the circuit court had erred
in failing to afford her the fit-parent presumption when she
revoked her consent and sought to terminate the guardianship.
Here, appellant has never been adjudicated an unfit parent.
Therefore, in accordance with our reasoning in W.L.
and Donley, appellant in the present case is a fit
parent. As we have previously stated:
Parents have a fundamental right to raise their children. We
will not lightly intrude on this fundamental right. We have
already said that a guardianship is no longer necessary once
a fit parent revokes an earlier-given consent. This is
because a fit parent is presumed to be acting in the
child's best interest. By petitioning to terminate the
guardianship and revoking consent, the fit parent, who has
...