Smith v. Lovelace

380 S.W.3d 514, 2011 Ark. App. 74, 2011 Ark. App. LEXIS 84
CourtCourt of Appeals of Arkansas
DecidedFebruary 2, 2011
DocketNo. CA 10-406
StatusPublished
Cited by1 cases

This text of 380 S.W.3d 514 (Smith v. Lovelace) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Lovelace, 380 S.W.3d 514, 2011 Ark. App. 74, 2011 Ark. App. LEXIS 84 (Ark. Ct. App. 2011).

Opinion

ROBERT J. GLADWIN, Judge.

hOn December 31, 2009, the Pulaski County Circuit Court issued a permanent guardianship order in the Matter of the Guardianship of Marc A. Rice, Jr., and appellant Rhodis L. Smith seeks to have that order reversed. He contends that the trial court erred (1) in finding that it was in the child’s best interest that appellees Hershel Lovelace and Venita Lovelace be appointed guardians; (2) in applying the parent preference found in Arkansas Code Annotated section 28-65-204(a) (Repl. 2004); and (3) in failing to recognize appellant’s preferential status provided for by statute. We affirm the trial court’s order.

Appellant filed a guardianship petition seeking his appointment as guardian of his grandchild, Marc A. Rice, Jr., born January 6, 2008, when his daughter Lamondra Philton LSmith, the child’s mother, died.1 Appellees, the paternal aunt and uncle of the child, filed a motion to intervene, which was granted. Appellees then filed a competing petition for guardianship of the child.

At the hearing held on August 12, 2009, the trial court took testimony from appellant and appellees. Appellant testified that he lived in a two-bedroom house and that his daughter sleeps in one bedroom, his grandson sleeps in the front on a couch, and that the minor child sleeps in a baby pen in his bedroom. He testified that he was trying to buy another house, but the purchase had not taken place at the time of the hearing.

On cross-examination, appellant admitted that he was fired from his job as a State Trooper because of checks “that bounced.” He explained that he had a felony warrant issued for him and that, ultimately, he left the Arkansas State Police. Appellant testified that he thought Mark Rice, Sr., was the child’s father. He also admitted that Rice, Sr., was involved with the baby, although he had concerns about Rice, Sr.’s criminal record and his living in a rehabilitation center.

Appellee Venita Lovelace testified that she and her husband lived in a five-bedroom, 3,300 square-foot house with her three children. She stated that there was a bedroom available for the minor child. She testified that she worked for the Postal Service and that they had other sources of income — rental properties, two business buildings, and two houses. Venita |sLovelace told the trial court that she and her husband could provide the minor child a stable environment with support from family, church members, and friends. Hershel Lovelace testified that he was disabled, stayed home during the day, and would be available to help with the minor child. He said that he was a pastor and that he and his wife could offer the child a Christian home and atmosphere.

A consent order was introduced that gave Rice, Sr., visitation with the child at appellant’s home. However, Rice, Sr., did not file for guardianship, and, even though an order for paternity test had been filed, no order establishing paternity had been entered at the time of the guardianship hearing. Rice, Sr., admitted his past problems and stated that he was living in a chemical-free house and had been drug free for seven months. He testified that he was working and that his child would give him the strength to “[s]tep up to the plate and take care of [his] responsibilities.” He testified that he was taking business and management courses at the University of Phoenix, that he worked as a cook at a nonprofit organization, and that he had recently started a lawn service. He speculated that he would have the money to buy a house next year. Rice, Sr., said that he was not financially able to care for his child and wanted appellees to take care of his son. He stated that when he had gone to visit with his son at appellant’s house, there was alcohol use there.

The trial court ruled in pertinent part as follows:

6. Ark.Code Ann. § 28-65-204 provides, in part, that parents of the minor child are preferred over all others for appointment as guardian if the Court finds them qualified and suitable. The statute goes on to provide, in part, that the Court shall appoint as guardian the one most suitable who is willing to serve.
|/7. The father of Marc A. Rice, Jr., was present for the hearing testified [sic] that he wants the juvenile to be placed with his sister and brother-in law, Venita and Hershel Lovelace.
8. The child’s best interest is of paramount consideration.
9. Permanent Guardianship is granted to Hershel and Venita Lovelace.

Appellant filed a motion for new trial, an amended motion for new trial, a motion to recall the guardianship letters, a motion for contempt, and a second amended motion for new trial, all of which were deemed denied because no ruling was issued from the circuit court. Appellant then filed a timely notice of appeal, and this appeal followed.

The applicable standard of review has been expressed by the Arkansas Supreme Court as follows:

This court reviews probate proceedings de novo on the record, but it will not reverse the decision of the circuit court unless it is clearly erroneous. In conducting our review, we give due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Furthermore, while we will not overturn the probate judge’s factual determinations unless they are clearly erroneous, we are free in a de novo review to reach a different result required by the law.

Hetman v. Schwade, 2009 Ark. 302, 4-5, 317 S.W.3d 559, 562 (citations omitted).

Arkansas Code Annotated section 28-65-210 (Repl.2004) provides

Before appointing a guardian, the court must be satisfied that:
(1) The person for whom a guardian is prayed is either a minor or otherwise incapacitated;
(2) A guardianship is desirable to protect the interests of the incapacitated person; and
(3) The person to be appointed guardian is qualified and suitable to act as such.

Where the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. See Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000).

|(⅞1. Best-Interest Analysis

Appellant contends that the trial court’s finding, that it was in the child’s best interest to have appellees as guardians, was clearly erroneous. He argues that the child was living with him prior to the mother’s death. After her death, appellant contends that he stood in loco par-entis and was the child’s primary caretaker for eight months prior to the final hearing and a full year prior to the permanent guardianship order. See Stand-ridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).

He argues that two witnesses, Naobie Green, Lamondra’s best friend, and Bernice Graves, a Smith family friend, testified that appellant was doing a great job with the child.

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Related

Smith v. Lovelace
2014 Ark. App. 345 (Court of Appeals of Arkansas, 2014)

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Bluebook (online)
380 S.W.3d 514, 2011 Ark. App. 74, 2011 Ark. App. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-lovelace-arkctapp-2011.