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.
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, 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 continuing
custody with the guardian." The circuit court also
noted, "[t]his court did not find the natural mother to
be unfit in its order of May 27, 2009."
However,
the circuit court also made several findings that were either
unfavorable to Morris or favorable to Clark. The circuit
court found that "[t]he natural mother failed to
exercise regular visitation with JM through no fault of the
guardian." Furthermore, notwithstanding its
aforementioned finding that Morris's "personal life
is stable," the circuit court noted that "[f]rom
the proof, this court concluded that the natural mother is
experiencing residential instability." The circuit court
also found that "[t]he relationship between the mother
and child has been extremely limited for a long time through
no fault of the guardian," and that "[t]he minor
wishes to live with his guardian." Finally, the circuit
court found that "[t]he guardian has shown that it is in
the welfare and best interest of the child that this
guardianship continues."
Ultimately,
the circuit court denied Morris's petition to terminate
the guardianship. This appeal followed.
II.
Applicable Legal Authority
Our
assessment of this matter begins with a natural parent's
constitutional right to raise his or her child without undue
interference from government. The Supreme Court of the United
States addressed this issue in Troxel v. Granville,
530 U.S. 57 (2000). In Troxel, Eight Justices agreed
that the Fourteenth Amendment protects a parent's right
to raise his or her child without undue interference from
government. Five Justices agreed that a fit parent is
accorded a presumption that the parent acts in the
child's best interests. Four Justices agreed that
"special factors" must "justify" the
state's intrusion, and that one of those factors is a
finding of parental unfitness. This ...