Morris v. Clark

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          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, Pine Bluff, for appellant.

          One brief.

         OPINION

         JOSEPHINE LINKER HART, Associate Justice

          This matter comes before us as an appeal from Jefferson County Circuit Court. Appellant, Alicia Morris, seeks reversal of the circuit court’s March 10, 2017 order, which denied her motion to terminate a guardianship held by Jannelle Clark, who is Morris’s niece, over J.M., who is Morris’s minor child. The Arkansas Court of Appeals affirmed, and we then granted review. We vacate the opinion from the Arkansas Court of Appeals, and reverse and remand for an order consistent with this opinion.

          I. Background

          Before any pleadings or other documents related to this action were filed, on July 21, 2007, Morris signed what is titled a "Legal Document," that purported to confer a guardianship over J.M., an infant at the time, to either Collie Bland, who is Morris’s sister, or Clark. Morris’s statement in the document provides that she was presently "not stable," and that she that she believed Bland, her sister, was the one who would have guardianship over J.M. However, it is Clark’s signature that appears on the line in the document for "adoptive parent."

          On February 12, 2009, Clark filed a petition for guardianship over J.M., alleging that Morris had numerous criminal charges pending. On February 17, 2009,

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the circuit court held a hearing and entered an emergency order appointing Clark as J.M.’s temporary guardian. On April 27, 2009, Morris filed a pro se response stating that she was not relinquishing her parental rights and stating that she only intended for Bland to be J.M.’s guardian, not Clark.

          On May 11, 2009, the circuit court held a hearing on Clark’s petition at which Clark appeared with counsel and Morris, who had a pending felony charge of second-degree battery, appeared pro se. At the hearing, Morris notified the circuit court that she was contesting the petition. The circuit court found that Clark was qualified and that it was in J.M.’s best interests that Clark be appointed as guardian. The court awarded Morris visitation every other weekend with the option to the mother and guardian to agree to additional visitation. The court did not make any explicit finding to the effect that Morris was unfit to parent.

          A little over seven years later, on August 18, 2016, Morris filed a Motion for Emergency and Ex Parte Order for Temporary Custody, Motion for Permanent Change of Custody and to Terminate Guardianship, for Contempt and to Abate or Dismiss Petition for Child Support. Alicia alleged, inter alia, that the felonies had been nolle prossed, she had no pending felony charges, and that Clark had willfully denied visitation. Clark responded generally denying the allegations. The circuit court set the matter for hearing on October 26, 2016.

          It would be fair to say that the circuit court was presented with "mixed facts" at the October 26, 2016 hearing. In its order, the circuit court made a number of findings that were either favorable to Morris or unfavorable to Clark. For example, the circuit court found that "[t]he natural mother showed that the conditions that made it necessary for this guardianship no longer exist. The felony charge was nolle prossed. It would appear that the natural mother’s personal life is stable." The circuit court also found that Clark had moved the child to Tennessee without permission and had the child using the last name of Clark’s then-boyfriend, a convicted felon, both of which "caused (the) circuit court great concern in ...