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In re Guardianship of L.J.P.

Court of Appeals of Arkansas, Division I

October 16, 2019

IN THE MATTER OF THE GUARDIANSHIP OF L.J.P., A MINOR DEREK PIKE APPELLANT
v.
MARILYN SHULER, BRENDA FORTHMON, AND RONNIE FORTHMON APPELLEES

          APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63PR-16-587] HONORABLE BARBARA WEBB, JUDGE

          Brooks A. Wiggins, for appellant.

          Short Law Firm, by: Lee D. Short, for separate appellee Marilyn Shuler.

          OPINION

          N. MARK KLAPPENBACH, JUDGE

         Appellant Derek Pike appeals the August 23, 2018 order of the Saline County Circuit Court that denied his petition to terminate guardianship over his daughter LP and granted LP's maternal grandmother, appellee Marilyn Shuler, permission to intervene in the guardianship proceedings. Marilyn had sought to intervene and requested to be appointed LP's guardian or, alternatively, to be awarded grandparent-visitation rights. Marilyn was permitted to intervene, and she was awarded grandparent visitation, but she was not appointed LP's guardian. The circuit court ordered the paternal grandparents, appellees Brenda and Ronnie Forthmon, to continue as LP's guardians. Derek appeals, contending that (1) the circuit court erred in not terminating the guardianship because he had been declared a fit parent by court order; (2) the circuit court erred in requiring him to prove that guardianship was (a) no longer necessary and (b) no longer in LP's best interest; and (3) the circuit court abused its discretion in permitting Marilyn to intervene. We affirm.

         Arkansas Code Annotated section 28-65-401(b)(3) (Supp. 2017) governs this guardianship proceeding, and it provides that a guardianship may be terminated by court order "[i]f, for any other reason, the guardianship is: (A) No longer necessary; and (B) No longer in the best interest of the ward."[1] 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.

         In 2011, Katie and Derek Pike were divorced in the Saline County Circuit Court and agreed to share joint custody of their then two-year-old daughter, LP. In November 2015, Marilyn (Katie's mother) was appointed the temporary guardian of LP by order of the probate division of the Saline County Circuit Court. The attorney ad litem conducted a thorough assessment of Katie, Derek, LP, and Marilyn, and opined that Katie was unstable and suffering from drug-and-alcohol addiction; that Derek was presently a viable parent for LP; and that guardianship was not needed at that time. In May 2016, Derek and Katie agreed that Derek would be awarded primary custody in the domestic-relations proceeding, subject to the visitation rights Marilyn had in the probate proceedings. As of mid-June 2016, Marilyn's temporary guardianship of LP was terminated.

         By late 2016, Marilyn petitioned to be appointed LP's guardian as a result of both parents' instability and drug issues. The Forthmons (Derek's mother and stepfather) also petitioned to intervene, to acquire emergency custody, and to be appointed LP's guardians. Following a hearing in January 2017, the circuit court found both Derek and Katie to be unfit, awarded temporary guardianship of LP to the Forthmons, gave Marilyn visitation privileges, and gave Derek and Katie supervised visitation.

         The matter was heard again in March 2017, and as a result, the circuit court entered an order in April 2017 granting permanent guardianship to the Forthmons. Both Katie and Derek had filed written consents to the Forthmons having guardianship over LP. Derek had pending criminal charges, and he had tested positive for marijuana, opiates, and hydrocodone. The April 2017 order made the following pertinent findings: (1) the Forthmons would be permanent guardians over then eight-year-old LP, (2) both Derek and Katie had entered written consent to permanent guardianship, (3) regardless of parental consent, both Derek and Katie were unfit, (4) Marilyn would be entitled to specific visitation, and (5) Derek and Katie would be permitted supervised visitation.

         In separate paternity and child-support proceedings, Derek was found to be the father of a younger daughter, DP, whom he had with his girlfriend Kayla Skinner. In August 2017, Derek sought and was granted ex parte emergency custody of DP, taking the child from Kayla. The order for emergency custody recited that Derek was "the fit and proper person" to have emergency custody of DP pending a hearing.

         In September 2017, Derek filed a petition to terminate the guardianship over LP and to withdraw his prior consent. In November 2017, Marilyn sought to intervene, and she resisted the termination of guardianship, contended that guardianship was still needed to protect LP from her unfit parents, and asked to be appointed LP's guardian. Derek filed a motion to dismiss Marilyn's requests because she had not been permitted to intervene, so she had no standing. Marilyn filed a response in which she pointed out that she was the original petitioner, she had existing visitation rights, and Derek's motions should be dismissed in their entirety.

         The pending motions and petitions were considered at a July 2018 hearing. At that point, the Forthmons were in favor of Derek regaining custody of LP, which is what Derek wanted. At the beginning of the hearing, Derek's attorney conceded on the record that Derek had the burden of proving that he is a fit parent.

         Derek testified that he had lived in Saline County until about May 2018, when he moved to a house in Maumelle with his youngest daughter DP. He explained that DP's mother Kayla had a drug problem and had made up criminal allegations against him, planting guns and drugs in his house; that she admitted later to fabricating those allegations; and that he and Kayla were no longer in a relationship. Kayla had supervised visitation with DP on alternate weekends. He said that he originally agreed to guardianship of LP in March 2017 because of the pending false criminal allegations, although the charges were dropped in August 2017. Derek had his own heating and air business, and he had regular business hours, although much of his time off was spent caring for DP. He said he owns his own home, he is drug free, he does not expose LP to his rock band or its associated activities, and he should have custody of LP as well as DP. If he regained custody, he would move LP from her school in Benton to a school in Maumelle. Derek and Marilyn did not have a good relationship, but he was willing to work with her because she is ten-year-old LP's grandmother. He was appreciative of all that his mother and stepfather had done for and with LP.

         Derek's parents testified about their guardianship over LP and their life in Benton. They believed that it was in LP's best interest to be in her father's care, but if the guardianship was not going to terminate, then they wanted to continue to be her guardians. They said that Derek's move to Maumelle had caused him to see LP less, and they did not want him to disrupt LP's school-night routine, so he did not visit her during the week. Derek's mother acknowledged that Derek has bipolar disorder and has a temper but ...


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