Ark. Code Ann. § 28-65-210 (2020)

Case Notes

In General.

Former similar statute required only that after it was found that a guardianship was desirable to protect the interests of a minor, the person to be appointed guardian was qualified and suitable to act. Lee v. Grubbs, 269 Ark. 205, 599 S.W.2d 715 (1980) (decision under prior law).

Circuit court did not err in appointing a sister as guardian over her sibling, an incapacitated adult, without holding a hearing to determine the sister's qualifications or making specific factual findings regarding her suitability because the record did not indicate that the circuit court ever refused any request by the brother to hold an evidentiary hearing or issue findings of fact; nothing in § 28-65-203 mandates a hearing or specific factual findings on the question of a guardian's ability to serve, and no such requirements are set forth in this section. Kuelbs v. Hill, 2010 Ark. App. 793, 379 S.W.3d 716 (2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 284 (Ark. June 2, 2011).

Circuit court did not err when it failed to terminate the guardianship of a child by the child's paternal aunt and uncle and to establish the child's maternal grandparent as the guardian of the child because the court considered the testimony of the status of the child's circumstances and made a determination regarding the child's best interest. Smith v. Lovelace, 2014 Ark. App. 345 (2014).

Evidence.

A child's grandparents, rather than her putative father, were properly appointed as guardians where, inter alia, (1) the grandparents owned their own home and were gainfully employed, (2) a home study established that their home was suitable and desirable and that they possessed the ability to care for the instant and future welfare and happiness of the child, and (3) they had contributed continual financial support to both the child and her mother, including the payment of prenatal care, cost of the birth, and hospital bills, whereas (4) the putative father was “in transition,” as he had only been employed at his current job for one week prior to the hearing and did not have a home of his own, (5) there was no credible evidence to support his testimony that he had provided support for the child all of her life, and (6) there was credible evidence detailing his physical abuse of the child's mother, even while she was seven or eight months pregnant with the child. Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000).

Denial of paternal grandmother's petition for guardianship was affirmed as the grandmother was unsuitable because she had been dishonest with the court. Bailey v. Maxwell, 94 Ark. App. 358, 230 S.W.3d 282 (2006).

In a guardianship case that awarded permanent guardianship to the grandparents, the mother took significant action towards rectifying any issues that would keep her from retaining custody of her son, including (1) maintaining a neat, clean, and appropriately furnished home; (2) taking steps to remedy most of the absence and tardiness issues by applying to an elementary school closer to her home and no longer working nights; (3) immediately and permanently removing wall art that could be deemed inappropriate and were an issue regarding her ability to care for her son; and (4) decreasing her Internet presence by removing most of the pictures of her from the offending websites; those were the very types of improvements that parents were encouraged to make in the best interests of their child, and the mother should not be disparaged for her efforts to improve her home and her parenting skills. Thus, it was not in the child's best interests to take custody from the mother, who had rectified all issues related to her fitness, and grant custody to the child's grandparents; therefore, the circuit court clearly erred in removing the child from the mother's care and granting permanent guardianship to the grandparents. Devine v. Martens, 371 Ark. 60, 263 S.W.3d 515 (2007), overruled, Fletcher v. Scorza, 2010 Ark. 64, 359 S.W.3d 413 (2010).

Where maternal grandparents were appointed guardians of their grandson after the mother's death, the father's petition to terminate the guardianship was properly denied because (1) some of the father's testimony was found to be not credible and the father had a smoking habit and a previous domestic-battery incident, and (2) the statutory natural-parent preference under § 28-65-204(a) was subservient to the best interest of the child. Smith v. Thomas, 373 Ark. 427, 284 S.W.3d 476 (2008).

Order appointing appellee guardian of the minor child was affirmed because, in guardianship matters, the natural-parent preference was but one consideration, which was subservient to the principle that the child's best interest was the paramount consideration; the circuit court was in a superior position to weigh and assess the credibility of witnesses, Fletcher v. Scorza, 2010 Ark. 64, 359 S.W.3d 413 (2010), rehearing denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 170 (Mar. 18, 2010).

Trial court properly found it was in a child's best interests to appoint a paternal aunt and uncle as guardians, in accordance with this section, rather than the maternal grandfather, because even though both parties satisfied the preferential status under § 28-65-204(b)(4), any preferential status was subservient to the best interests analysis performed by the trial court; although the father was not qualified to be the guardian, the father wanted the child placed with the aunt and uncle. Smith v. Lovelace, 2011 Ark. App. 74, 380 S.W.3d 514 (2011), rehearing denied, — Ark. App. —, — S.W.3d —, 2011 Ark. App. LEXIS 221 (Mar. 16, 2011), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 402 (Ark. Apr. 7, 2011).

Order appointing the mother's aunt and uncle guardian of the minor child was proper because the father's parents did not have standing to argue that the trial court erred in denying the father's motion to vacate; a U.S. Const. Amend. VI right to counsel was not cognizable in ordinary civil cases; § 28-65-207(a)(3) provided that notice need not be given to any person who actually appeared at the hearing; and there was no evidence that the trial court ignored the father's wishes, § 28-65-204(b). Light v. Duvall, 2011 Ark. App. 535, 385 S.W.3d 399 (2011).

Denial of the aunt and uncle's petition for guardianship over the minor children was improper because the children would be required to primarily reside in the same residence with a man who pled guilty to inflicting severe burns on the younger of them, and with their mother who, at the very least, did nothing to prevent the abuse despite evidence that other instances of abuse had occurred. Gammill v. Hoover, 2011 Ark. App. 788 (2011).

Aunt was properly appointed as the guardian of two children under this section where it was in the best interest of the children in order to protect them from the effects of their mother's abusive relationship, and the aunt was qualified and suitable to act as the guardian. Even though the mother had ended the relationship and completed classes and counseling, the natural-parent preference was merely one facet of the case, and the mother was unable to provide for the emotional needs of the children. Gantt v. Ark. Dep't of Human Servs., 2013 Ark. App. 217 (2013).

Evidence showed a long-standing and positive relationship between the child and the couple, who had spent quality time with the child for years, and a strong bond existed between them; the mother took little action to establish her fitness to parent the child, the circuit court's best-interest finding was not clearly erroneous, and the three statutory requirements for guardianship had been met in this case. Little v. Ark. Dep't of Human Servs., 2016 Ark. App. 362, 499 S.W.3d 233 (2016).

Notwithstanding the contentions of a child's grandparents that appellee failed to establish that she was qualified or suitable to act as the child's guardian, the appellate court concluded there was ample evidence before the circuit court that appellee was qualified and suitable to serve as guardian. The circuit court's finding that appellee would be the better person to parent the child was supported, and the appellate court was not left with a definite and firm conviction that a mistake had been made. Brewer v. Bair-Massey (In re A.B.), 2018 Ark. App. 529, 562 S.W.3d 891 (2018).

Grandparent.

Circuit court properly awarded the grandmother's petition for guardianship because it did not clearly err in finding that the grandmother was a suitable guardian; the circuit court's findings that the father did not abuse his children and that the mother coached the children to say he did were not clearly erroneous because all of the investigations of the alleged abuse established that the mother's allegations were unsubstantiated. Mossholder v. Coker, 2017 Ark. App. 279, 521 S.W.3d 150 (2017).

Circuit court properly awarded the grandmother's petition for guardianship because the grandmother was not required to prove that the mother was unfit; there was a large mountain of evidence presented in the case to demonstrate that the mother was unsuitable, and the circuit court found that the mother poisoned the minds of the children and coached them to make untrue statements. Mossholder v. Coker, 2017 Ark. App. 279, 521 S.W.3d 150 (2017).

Medical Testimony.

In a hearing on a petition to appoint a guardian for one alleged to be incompetent for other reasons than minority, the evidence had to include the oral testimony or sworn statement of at least one medical witness. Sparks v. First Nat'l Bank, 242 Ark. 435, 413 S.W.2d 865 (1967) (decision under prior law).

Cited: Moore v. Sipes, 85 Ark. App. 15, 146 S.W.3d 903 (2004); Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005); Troeskyn v. Herrington (In re S.H.), 2012 Ark. 245, 409 S.W.3d 307 (2012).