Terri Simmons v. Bryan Steele

2023 Ark. App. 386

• Court: Court of Appeals of Arkansas
• Decided: September 13, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 386 ARKANSAS COURT OF APPEALS DIVISION III No. CV-22-522

Opinion Delivered September 13, 2023 TERRI SIMMONS APPELLANT APPEAL FROM THE YELL COUNTY CIRCUIT COURT, V. NORTHERN DISTRICT [NO. 75NPR-21-102] BRYAN STEELE HONORABLE DAVID H. APPELLEE MCCORMICK, JUDGE

AFFIRMED

MIKE MURPHY, Judge

Appellant Terri Simmons appeals from the Yell County Circuit Court’s termination

of her temporary guardianship of her grandchildren, Minor Child 1 (MC1) (DOB: 05-29-18)

and Minor Child 2 (MC2) (DOB: 12-03-10). On appeal, Simmons argues the court erred in

affording appellee Bryan Steele the fit-parent presumption in terminating the guardianship.

We affirm.1

1 There are different statutory requirements for granting a guardianship and terminating a guardianship; namely, in creating a guardianship the court must consider whether the guardian is “qualified and suitable” and what is in the ward’s best interest. See Ark. Code Ann. § 28-65-204 (Repl. 2012). Parental fitness is not a consideration in establishing a guardianship. See Fletcher v. Scorza, 2010 Ark. 64, 359 S.W.3d 413. Following suit with the circuit court, we analyze this case as a termination of guardianship. See Munn v. Hudson, 2011 Ark. App. 775. On December 14, 2021, Terri and Dale Simmons petitioned the court for a

temporary guardianship of their two grandchildren, alleging the minors were in imminent

danger of environmental neglect or abuse specifically due to the drug use of their daughter,

Beverlee.2 According to the petition, Beverlee would frequently leave her minor children at

the Simmonses’ residence and not return for days or weeks at a time. The petition also

alleged that Bryan Steele, MC2’s father, “frequently leaves [MC2] in the care of other

supervising adults while she stays at his residence. [MC2] frequently returns to Petitioners’

residence from her father’s residence extremely hungry, as if she is not fed at her father’s

residence. [MC2] also returns from Mr. Steele’s residence with head lice.” Last, it alleged that

Brian Thomas is the possible father of MC1 but that he has never had a relationship with

the child, and his whereabouts are unknown.3 An ex parte order of emergency guardianship

was entered. A probable-cause hearing was conducted, and the court granted a temporary

guardianship. Notably, in the granting of the temporary guardianship, the court did not

make a finding that Steele was unfit.

On March 11, 2022, the Simmonses filed a petition to extend the guardianship. On

March 14, Steele moved to terminate the guardianship and requested a hearing. In the

motion, he alleged he was served summons just fifteen minutes before the probable-cause

hearing and was unable to attend. On March 23, the Simmonses filed a response to the

2 Dale is not a party to the appeal. 3 Thomas was never married to Beverlee and has never filed a paternity action.

2 motion to terminate the guardianship asserting that Steele has never established a parent-

child relationship with MC1 as corroborated by the fact that MC1 had lived with the

Simmonses for over a year. The motion further alleged that Steele had failed to provide

housing, medical care, clothes, or supervision over MC1 and that the Simmonses had

assumed these responsibilities. They alleged “the guardianship is still necessary because (1)

the mother, Beverlee Steele, is still without a known residence and is likely still addicted to

drugs, (2) Brian Thomas’ whereabouts are still unknown, and (3) Bryan Steele/Petitioner has

consistently neglected [MC2].”

A hearing was conducted on May 3. Steele testified to the following. He has been

married to Beverlee for sixteen years, but they have been separated for the past six years. He

testified that they have not divorced, but he lives with his fiancée. He and his fiancée share

two children. MC2 is his biological child, and MC1 was born during his marriage to

Beverlee. Steele and Beverlee also have a fourteen-year-old daughter, Minor Child 3 (MC3).

MC3 currently lives with Steele and his fiancée.

Steele is self-employed as a handy man and has five rental properties. He said Beverlee

told him that MC1’s biological father had “gotten on something” and disappeared, and that

is why he never signed away his rights to her. He stated that, at times, Beverlee and the

children, including MC1, stayed with him when they needed shelter. Steele was not certain

of MC1’s age or birthday, but he testified that she thinks he is her father, and it is his request

that he raise her as his own. He testified that, while he has never provided for MC1’s medical

needs, he made it clear to the Simmonses that if they need anything they could contact him.

3 Steele testified he was currently unaware of Beverlee’s whereabouts. He thought she

was living with the Simmonses until this case was initiated and he found out Ms. Simmons

asked her to leave. He testified that the first time he was made aware that Beverlee was not

with the children, he went to the Simmonses and brought the children to his home. After

three weeks of having his children, he said he allowed them to visit the Simmonses for a

weekend, and upon picking them up, Beverlee was there. She told him she had been there

the whole time, and the children remained with her. That was when MC3 chose to stay with

Steele, and no one took issue with it. MC3 was still residing with Steele at the time of the

May 3 hearing.

Terri Simmons testified that Beverlee left because they would not let her and her

boyfriend sleep in the same bed. Simmons testified that she did not notify Steele when

Beverlee left because she assumed he knew as he had been in contact with Beverlee. She

testified that after becoming the temporary guardian, she was returning one of the children

to Steele after a visit, and Steele said that he understood why the Simmonses sought

guardianship and that he would not interfere. Simmons testified that MC1 had been with

her and her husband off and on since MC1 was a few months old. Simmons said that she

tried to stay out of Beverlee and Steele’s marriage and that she did not feel it was her place

to demand any support from them because Beverlee was still sometimes supporting the

children. She stated that Beverlee had indicated that Steele would provide support if she

asked for something in particular. Simmons testified that she took the necessary steps to

make sure MC1 and MC2 had health insurance.

4 Following the hearing, the circuit court entered an order terminating the temporary

guardianship of the minor children, finding that the temporary guardian “failed to prove the

legal father unfit,” and thus, that the guardianship was no longer needed under the law. This

appeal followed.

We review probate proceedings de novo, but we will not reverse a finding of fact by

the circuit court unless it is clearly erroneous. Mossholder v. Coker, 2017 Ark. App. 279, at 8,

521 S.W.3d 150, 155. 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.

A guardianship may be terminated by court order if it is “(A) no longer necessary; and

(B) no longer in the best interest of the ward.” Ark. Code Ann. § 28-65-401(b)(3) (Supp.

2023). In Troxel v. Granville, 530 U.S. 57, 68–69 (2000), the United States Supreme Court

held that “there is a presumption that fit parents act in the best interests of their children,”

and

so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.

If the natural parent is found to be unfit, then he or she is not entitled to the fit-parent

presumption. Morris v. Clark, 2019 Ark. 130, 572 S.W.3d 366. In Donley v. Donley, 2016 Ark.

243, 493 S.W.3d 762, and In re Guardianship of W.L., 2015 Ark. 289, 467 S.W.3d 129, our

supreme court held that the guardianships were no longer necessary once a fit parent revoked

5 his or her earlier given consent to the guardianship. In In re Guardianship of E.M.R., 2019

Ark. 116, at 7, 571 S.W.3d 15, 19, the supreme court expanded the fit-parent presumption

to a fit parent who did not consent to a guardianship, holding that such a parent “must still

be afforded a natural parent’s constitutional right to raise his or her child without undue

interference from the government” as recognized in Troxel.

Simmons argues the termination was erroneous because by affording Steele the fit-

parent presumption, neither prong of Ark. Code Ann. § 28-65-401(b)(3)—necessity and

ward’s best interest—was satisfied. To support her argument, she contends the statute must

be strictly construed, and it does not require a showing that a parent is unfit. We disagree.

Our supreme court has consistently held that “parental fitness is at the heart of

termination-of-guardianship cases involving parents of minor wards.” In re Guardianship of

E.M.R., 2019 Ark. 116, at 7, 571 S.W.3d at 19. Guided by this principle, we note that Steele

has not previously been deemed unfit and is, therefore, entitled to the fit-parent

presumption. By petitioning to terminate the guardianship, the fit parent, who has the

child’s best interest at heart, informs the court that the guardianship is no longer necessary.

See Donley, 2016 Ark. 243, 493 S.W.3d 762.

Accordingly, once Steele notified the court he wished to terminate the guardianship,

Simmons had the burden of proving Steele’s unfitness or to show exceptional circumstances

that would overcome the fit-parent presumption, but she did not do so. Notably, she testified

that she did not know if Steele was an unfit father, she did not express concerns for MC3

living with Steele, and she did not have concerns with allowing Steele to have regular,

6 unsupervised visitation with MC2. Moreover, the reasons for the guardianship stemmed

mainly from concern for Beverlee’s—not Steele’s—parenting. This evidence additionally

supports a finding that the guardianship is no longer necessary.

Turning to the second prong of the statute, whether the guardianship is no longer in

the best interest of the wards, because Steele has not been found unfit, he is entitled to the

presumption that he is acting in the best interest of his children. We acknowledge the court’s

concern in not making a specific best-interest finding as the court conceded that the best-

interest inquiry might dictate that the children not go back with Steele. In doing so, the

court noted that it had concerns about whether the children were being fed and why they

had head lice. But the court then acknowledged Simmons’ candid admission that she did

not know whether Steele was unfit and that there had been no evidence as to why the

children were hungry—were they just not eating enough or did they just not like what was

being served.

The court also expressed concern that most of Simmons’ testimony consisted of

hearsay statements from people not present at the hearing; for example, Simmons’ testimony

that Beverlee informed her whether Steele would provide support and that the children

informed her about their arrangements at Steele’s house during visits. Given the paucity of

evidence revealing that these issues were the result of neglect, the court determined that its

lingering concerns were insufficient to rebut the fit-parent presumption and that a best-

interest analysis would therefore be superfluous.

7 We agree, in light of this record, that there is nothing to rebut the presumption that

Steele is unfit. We have recognized that whether a natural parent is “fit” is a very different

question from whether it would be in a child’s “best interest” to live with a natural parent.

See Samples v. Ward, 2020 Ark. App. 524, at 11, 614 S.W.3d 830, 837. Specifically,

Per the Troxel plurality, “fitness” asks whether a natural parent can “adequately care for his or her children.” Troxel, [530 U.S. at 68]. If the natural parent is found to be unfit, then the natural parent is not entitled to the constitutional presumption discussed in Troxel and Linder, and the circuit court accordingly has greater discretion to determine whether to terminate the guardianship based upon the specific circumstances of a given case, including the best interests of the ward.

Morris v. Clark, 2019 Ark. 130, at 10, 572 S.W.3d 366, 371–72.

Further, as the Troxel plurality opined, some level of “special weight” must be afforded

to a fit parent’s preference as to what should happen to his or her child. Morris, 2019 Ark.

130, at 11, 572 S.W.3d at 372. In order to rebut the presumption, Simmons could have

either proved Steele unfit or shown exceptional circumstances sufficient to overcome the fit-

parent presumption. Accordingly, despite Simmons’ contention, the fit-parent presumption

does not negate the statute’s mandatory consideration of the best-interest prong.

Alternatively, Simmons argues that the record establishes Steele is unfit and a

guardianship is needed because the best interest of the children is for the guardianship to

remain. As explained above, there has not been a finding that Steele is unfit, and Simmons

has not overcome the presumption of parental fitness. Further, our courts do not recognize

a de facto finding of parental unfitness, nor can a court retroactively declare a parent unfit.

In re Guardianship of E.M.R., 2019 Ark. 116, at 6, 571 S.W.3d at 19.

8 In conclusion, as we held in Morris, 2019 Ark. 130, at 9, 572 S.W.3d at 371, “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.”

Affirmed.

HARRISON, C.J., and THYER, J., agree.

Robert S. Tschiemer, for appellant.

One brief only.