Ark. Code Ann. § 28-65-401 (2020)

Case Notes

In General.

Subdivision (b)(3) of this section plainly states that the method to terminate a guardianship is disjunctive: a guardianship may be terminated by court order if the guardianship is no longer necessary or for the best interest of the ward. Donley v. Donley, 2016 Ark. 243, 493 S.W.3d 762 (2016) (decided before the 2017 amendment).

Because the guardianship terminated at the ward's death, his funeral expenses were not proper expenses of the guardianship. Rogers v. Ritchie, 2017 Ark. App. 420, 528 S.W.3d 272 (2017).

Best Interests of Ward.

Where a guardian in succession had been appointed as a result of the improper use of ward's funds by original guardian and natural mother, and ward, then 22, ratified such use of funds, which the guardian in succession was attempting to recover from the mother and her bonding company, it was not in the best interests of the ward to continue the guardianship and it was ordered terminated subject to the payment by the mother and the bonding company of any other claim against them and the costs of the guardianship. Continental Ins. Co. v. Estate of Rowan, 252 Ark. 980, 482 S.W.2d 102 (1972) (decision under prior law).

Prior holding that this section allows the court to consider the best interest of the ward in deciding whether to terminate a guardianship and that the rights of the natural parents are not proprietary, would not be interpreted as providing the only guidelines a probate court can consider in terminating a guardianship. Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996).

Trial court erred in applying a child custody change in circumstances analysis in deciding a mother's petition to terminate the guardianship of her child by his paternal grandmother because the appropriate standard to be applied in guardianship termination proceedings was the statutory standard set out in subdivision (b)(3) of this section. Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273 (2009).

Denial of the mother's petition to terminate guardianship was improper because this section was not applied to her in the least restrictive available method where there was no weight given to her decision to terminate despite the presumption that she acted in her child's best interest. Therefore, the application of this section violated the mother's constitutional right. Troeskyn v. Herrington (In re S.H.), 2012 Ark. 245, 409 S.W.3d 307 (2012), overruled in part, Lineham v. Hyde (In re W.L.), 2015 Ark. 289, 467 S.W.3d 129 (2015).

Circuit court's finding that it remained in the children's best interest to leave the guardianship with the paternal grandparents intact was clearly erroneous where the mother had stable employment, a suitable home, family support, and a close relationship with the children, and overnight visitation had been consistently exercised with no issues other than minor disciplinary disagreements with the paternal grandparents; thus, the fit-parent presumption that the mother had acted in her children's best interest was not rebutted. Hartman v. Reardon (In re E.M.R.), 2019 Ark. 116, 571 S.W.3d 15 (2019).

Change of Residence.

The fact that an Arkansas guardianship may be terminated if the ward becomes a nonresident of the state constitutes express legislative recognition that guardians may effect a change in residence. King v. Beavers, 148 F.3d 1031 (8th Cir. 1998), cert. denied, 525 U.S. 1002, 119 S. Ct. 513 (1998).

Effect of Guardian's Erroneous Belief.

Where a mother erroneously concluded that a minor's marriage emancipated him and that his signed receipt cleared her of liability as his guardian with respect to the father's estate, although the minor was not bound by the signed receipt, and the guardian, before expending the corpus, failed to obtain prior authorization and to file regular reports of expenditures, as required by law, the probate court could properly apply such charges against the minor's claim against his mother-guardian's estate. Shinley v. Ricks, 234 Ark. 767, 354 S.W.2d 547 (1962) (decision under prior law).

Evidence.

Evidence justified a finding that the natural parents voluntarily consented to an order appointing an aunt as the guardian for their daughter and that they asked her to raise the child, and while they did not thereby forfeit their parental rights, the burden was upon them to show that a termination of the guardianship would be in the child's best interest. In re Guardianship of Markham, 32 Ark. App. 46, 795 S.W.2d 931 (1990).

Mother presented sufficient evidence to show that guardianship was no longer necessary and that it would be in child's best interests to terminate the guardianship and reunite him with his mother; she had entered drug treatment program and remained drug-free since leaving that program, she was happily married, and she voluntarily had been sending guardian support money. Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996).

Fit parent who consented to a guardianship puts forth sufficient evidence to terminate the guardianship, and meets the burden going forward, by revoking consent and informing the court that the conditions necessitating the guardianship no longer exist; the guardians must rebut the presumption, by clear and convincing evidence, that termination of the guardianship is in the child's best interest, and the court must always consider the parent's right to parent his or her child in that decision. Troesken v. Herrington (In re S.H.), 2015 Ark. 75, 455 S.W.3d 313 (2015), overruled in part, Lineham v. Hyde (In re W.L.), 2015 Ark. 289, 467 S.W.3d 129 (2015).

Parents.

The rights of parents are not proprietary and are subject to their related duty to care for and protect the child, and the law secures their preferential rights only so long as they discharge their obligations. In re Guardianship of Markham, 32 Ark. App. 46, 795 S.W.2d 931 (1990).

Fit parent is presumed to act in the child's best interest when consenting to the guardianship and, later, when terminating the guardianship; fit, natural parents who consent to a guardianship need additional protection in seeking to terminate the guardianship. Troesken v. Herrington (In re S.H.), 2015 Ark. 75, 455 S.W.3d 313 (2015), overruled in part, Lineham v. Hyde (In re W.L.), 2015 Ark. 289, 467 S.W.3d 129 (2015).

Circuit court erred in applying the two methods set forth in subdivision (b)(3) of this section in a conjunctive manner where the statute plainly stated that the methods were disjunctive. After the termination of the temporary guardianship, when the mother revoked her consent to the guardianship, she was entitled to the fit-parent presumption and the burden shifted to the opposing party to demonstrate that the guardianship was still necessary or in the child's best interest. Donley v. Donley, 2016 Ark. 243, 493 S.W.3d 762 (2016) (decided before the 2017 amendment).

Presumption of Continuation of Incompetency.

Where a person was adjudicated incompetent because of alcoholism, the status of such a person was presumed to continue until a change was established by proof upon a petition addressed to court. Lester v. Pilkinton, 225 Ark. 349, 282 S.W.2d 590 (1955) (decision under prior law).

Parties.

In a guardianship termination proceeding, probate court did not err in dismissing alleged natural father as a party where there had never been any adjudication of paternity and where alleged natural father, contending that under Texas law a man was considered the father if his name appeared on the child's birth certificate, never filed a birth certificate stating that he was the father with the Texas court. Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996).

Presumption of Fit Parent.

Under subdivision (b)(3) of this section, the mother was entitled to the fit-parent presumption that the guardianship of her children with the paternal grandparents was no longer necessary. It was clear from the record that the reasons for the guardianship, i.e., exposure to the former husband's family members and one child's feeling safer at the paternal grandparents' home, no longer existed at the time of the termination hearing, and the circuit court clearly erred in finding that the reason for originally granting the guardianship still existed (mother's former husband was serving sentence for rape of one of the children). Hartman v. Reardon (In re E.M.R.), 2019 Ark. 116, 571 S.W.3d 15 (2019).

Termination Not Warranted.

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).

Trial court did not clearly err in denying an individual's petition to terminate a guardianship where he failed to provide persuasive compelling evidence that he was no longer incapacitated or that a guardianship was no longer necessary to protect his best interests, and the trial court was obviously persuaded by a psychologist's professional opinion that the individual was not yet ready to be without the protection afforded by the guardianship. Foster v. Ark. Dep't of Human Servs., 2017 Ark. App. 332, 521 S.W.3d 490 (2017).

Father's petition to terminate guardianship was properly denied where he had been found unfit as a parent in the guardianship proceedings, he remained unfit going into the hearing on his petition to terminate the guardianship, and he had invited the error as to whether he was required to prove that guardianship was no longer necessary and in the child's best interests given his attorney's concession at the outset of the petition hearing that the father had the burden to establish that he was a fit parent. Pike v. Shuler (In re L.J.P.), 2019 Ark. App. 456, 588 S.W.3d 58 (2019).

Termination Warranted.

Where an incompetent brought a guardianship termination proceeding, in which she requested the trial court to adjudicate and restore her competency, and the evidence clearly established that the plaintiff was competent to care for herself and her home and had done so for the previous 12 years, the trial court erred in refusing to grant her request because there was no evidence that she suffered from the requisite mental incapacity of unsoundness of mind required to necessitate the appointment of a guardian, notwithstanding the fact that she was unable to properly manage her finances due to her inexperience in such matters. In re Estate of Lemley, 9 Ark. App. 140, 653 S.W.2d 141 (1983) (decision under prior law).

Beneficiary who had reached her majority and was not mentally deficient, emotionally unstable, or suffering from any mental illness can have the guardianship of her estate terminated; the purpose of the guardianship was to protect beneficiary's interests as a minor. In re Estate of Strickland, 50 Ark. App. 7, 902 S.W.2d 238 (1995).

Order dissolving the maternal grandmother's temporary guardianship of a child and awarding custody of the child to her natural father was affirmed because by the time the trial court dissolved the guardianship, the father had remarried and was better able to take on parenting responsibilities. Munn v. Hudson, 2011 Ark. App. 775 (2011).

Child's natural parent who had consented to the guardianship of the child so that she could join the military and who was never found to be unfit as a parent was entitled to have the guardianship terminated because she put forth evidence that the guardianship was no longer necessary, as she had been discharged from the military, and the guardian failed to rebut the presumption that termination was in the child's best interest. The trial court's determination that the guardian did not rebut the presumption that the parent was acting in the child's best interest was not clearly erroneous, particularly because, where the case involved a child, the trial court's evaluation of the witnesses, their testimony, and the best interest of the child was entitled to a high degree of deference. Witham v. Beck, 2013 Ark. App. 351, 428 S.W.3d 537 (2013).

Father, who had a full-time job, was in a three-year committed relationship with his wife, had visited Arkansas 18 times to see the child and communicated with her through phone calls multiple times per week, and had the child for two six-week summer vacations, was a fit parent; thus, the trial court should have terminated the guardianship once the father revoked his consent. Lineham v. Hyde (In re Guardianship of W.L.), 2015 Ark. 289, 467 S.W.3d 129 (2015).

Circuit court erred in denying a a mother's petition to terminate a guardianship because it applied a legal standard that failed to safeguard the mother's fundamental right with respect to the care, custody, and control of her child; when the mother withdrew her consent in her petition to terminate the guardianship and testified that the conditions necessitating the guardianship no longer existed, she met her burden going forward that the guardianship was no longer necessary. Troesken v. Herrington (In re S.H.), 2015 Ark. 75, 455 S.W.3d 313 (2015), overruled in part, Lineham v. Hyde (In re W.L.), 2015 Ark. 289, 467 S.W.3d 129 (2015).

Circuit court erred in denying a a mother's petition to terminate a guardianship because the father's parents failed to rebut the presumption, by clear and convincing evidence, that termination of the guardianship was in the child's best interest; the mother remained a fit parent, which was all that mattered for constitutional purposes, and no evidence was shown that the mother could not also provide the love and affection that the father's parents did. Troesken v. Herrington (In re S.H.), 2015 Ark. 75, 455 S.W.3d 313 (2015), overruled in part, Lineham v. Hyde (In re W.L.), 2015 Ark. 289, 467 S.W.3d 129 (2015).

Natural parent who has not been declared unfit is presumed to act in his or her own child's best interest, and this presumption is applicable when such a parent seeks to terminate an existing guardianship over his or her minor child, in which case a parent's petition to terminate the guardianship need only inform the court that the guardianship is no longer necessary, which is an otherwise fit parent's only burden of proof; once that lack of necessity is communicated to a trial court by a fit parent, the court ordinarily terminates the guardianship, and the guardianship should only remain in place due to some circumstance that could overcome the parent's fundamental right to raise his or her child (decided under former version of subdivision (b)(3) before the 2017 amendment). Morris v. Clark, 2019 Ark. 130, 572 S.W.3d 366 (2019).

Trial court's determination that it is in a minor ward's best interests for a guardianship to remain in place, standing alone, is insufficient to defeat a fit parent's substantive due process interest in raising his or her own child because there is a constitutional presumption that a fit parent acts in his or her child's best interests, so where the parent has not previously been found unfit, weighing best interests at the outset of an inquiry into terminating a guardianship is inappropriate, and the mere fact that a child may have more or better opportunities with another family cannot be enough to keep that child away from an otherwise fit parent (decided under former version of subdivision (b)(3) before the 2017 amendment). Morris v. Clark, 2019 Ark. 130, 572 S.W.3d 366 (2019).

When a parent who has not previously been determined to be unfit petitions for termination of an existing guardianship over his or her minor child, trial courts ordinarily should only decline to terminate the guardianship where the guardian contests the parent's fitness and establishes that the parent is presently unfit, and where an otherwise fit natural parent seeks to terminate an existing guardianship and the parent is not found to be presently unfit, a trial court should dispose of the guardianship routinely (decided under former version of subdivision (b)(3) before the 2017 amendment). Morris v. Clark, 2019 Ark. 130, 572 S.W.3d 366 (2019).

It was error to deny a parent's petition to terminate a guardianship of the parent's child to which the parent had consented because the parent was not found to be unfit, so the parent's preference for what should happen to the child was entitled to special weight (decided under former version of subdivision (b)(3) before the 2017 amendment). Morris v. Clark, 2019 Ark. 130, 572 S.W.3d 366 (2019).

Cited: Crosser v. Henson, 357 Ark. 635, 187 S.W.3d 848 (2004).