Wilson v. Wilson

2013 Ark. App. 759, 431 S.W.3d 369, 2013 WL 6665454, 2013 Ark. App. LEXIS 793
CourtCourt of Appeals of Arkansas
DecidedDecember 18, 2013
DocketCV-13-365
StatusPublished
Cited by5 cases

This text of 2013 Ark. App. 759 (Wilson v. Wilson) 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
Wilson v. Wilson, 2013 Ark. App. 759, 431 S.W.3d 369, 2013 WL 6665454, 2013 Ark. App. LEXIS 793 (Ark. Ct. App. 2013).

Opinion

KENNETH S. HIXSON, Judge.

| Appellant Sarah Wilson appeals the entry of an order awarding permanent guardianship of her daughter EJW (born in November 2011) to appellees Randy and Donna Wilson, the child’s paternal grandfather and stepgrandmother (hereinafter “Randy” or “the grandparents”). EJW’s biological father, Billy Wilson, did not contest the guardianship and does not appeal. Billy is Randy’s son and Sarah’s husband. Sarah contends on appeal that the Ouachi-ta County Circuit Court clearly erred in finding that EJW needed permanent guardianship or that it was in her best interest to be placed with the grandparents. The grandparents assert that the trial court’s order is not clearly erroneous as it is supported by the evidence and compatible with Arkansas law. We affirm.

Our appellate courts review guardianship proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Witham v. Beck, 2013 Ark. App. 351, 428 S.W.3d 537. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a distinct and firm impression that a mistake has been made. Id. When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. Id. Moreover, in cases involving children, we afford even more deference to the trial court’s findings because our appellate courts have made clear that there is no other case in which the superi- or position, ability, and opportunity of the trial judge to observe the parties carries a greater weight than one involving the custody of a child. Id.

EJW, only one year old at the time the permanent guardianship was ordered, falls under the definition of an incapacitated person because she is under the age of majority. Ark.Code Ann. § 28-65-104(1) (Repl.2012). The purpose of guardianship over an incapacitated person is set forth in Ark.Code Ann. § 28-65-105 (Repl.2012). As relevant here, guardianship is to be used “only as is necessary to promote and protect the well-being of the person and his or her property.” Id. at subsection (1). Arkansas Code Annotated section 28-65-210 (Repl.2012) provides what must be proved to the trial court in order to appoint a guardian: (1) the person is a minor or is 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. There is a statutory preference to be given to the parent, “if qualified and, in the opinion of the court, suitable” to be appointed guardian, as set out in Ark.Code Ann. § 28-65-204(a). This natural-parent preference does not automatically attach to a child’s natural parents; it is within the circuit court’s discretion |sto make a determination as to whether a parent is “qualified” and “suitable” under section 28-65-204(a). Fletcher v. Scorza, 2010 Ark. 64, 359 S.W.3d 413.

When the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. A determination of parental fitness is not necessary in guardianship proceedings as between a natural parent and a third party; the best interest of the child is paramount. Id. To the extent that any prior cases suggest a standard of fitness or unfitness in guardianship proceedings involving the statutory natural-parent preference, those cases were overruled in Fletcher. The natural-parent preference is but one factor that the circuit court must consider in determining who will be the most suitable guardian for the child. Id. Any inclination to appoint a parent or relative must be subservient to the principle that the child’s interest is of paramount consideration. Id.

With this framework, we examine the evidence presented to the trial court. These family members resided in Camden, Arkansas. Sarah has two sons, SC and CM, and a daughter, EJW. Sarah’s children were fathered by three different men. Sarah is in her early twenties. Sarah’s husband, Billy, also in his early twenties, is the biological father of EJW and stepfather to the boys. By all accounts, Billy has a violent streak, a criminal record, and problems with drug addiction. Billy was physically abusive to Sarah on more than one occasion. By way of example, Sarah said that Billy, threw a television at her while she was holding EJW in her arms. Sarah developed a pattern of reporting Billy’s abusive behavior to law enforcement and seeking orders of protection, only to later drop the charges and resume her relationship with him. Billy was in and out of jail. He did not participate in any of the 14guardianship proceedings other than to consent to the grandparents being appointed guardians of EJW.

In late September 2012, Sarah left ten-month-old EJW with the grandparents and checked herself into Bridgeway Hospital for what she described as stress and anxiety. Sarah was diagnosed with a borderline-personality disorder. Sarah left Bridgeway after a week, saw her children for one day, and then she left them to go to Conway for a few days to visit a woman named Brandi Richardson, whom she met at Bridgeway Hospital.

In early October 2012, the paternal grandparents petitioned for guardianship over EJW. 1 The grandparents were concerned over Sarah’s living arrangements— she and her children were living with Sarah’s mother, sisters, and grandmother in Sarah’s grandmother’s mobile home, which was in deplorable condition. The paternal grandparents also had grave concerns about the chaotic life that accompanied Sarah’s marriage to Billy, her refusal to cut ties with him, and her general instability and lack of income. The trial judge took testimony, including that from Sarah despite her hours-late arrival to the hearing, where she appeared pro se.

Sarah explained that she went to Conway to see her friend Brandi and to attend a support group for people with emotional problems. She said that she became aware that the grandparents were trying to establish a guardianship over her daughter when she returned to Camden. Sarah agreed that Billy was abusive but stated that she was ready to get a divorce. IfiSarah agreed that the grandparents had kept EJW almost every weekend, but that was because they asked to have her. She also stated that there had been a lot of cleaning effort at her grandmother’s residence.

Randy testified that he and his wife had EJW practically every weekend, and that over time, they worried about EJW having so many mosquito bites, severe diaper rash, knots on her head, and bruising. He said that EJWs condition would improve over the weekend, but that by the following Friday, “it would start all over.” Randy expressed worry over the uncleanliness of Sarah’s living situation, stating that there were animal feces and odor associated with Sarah’s mother’s home. Randy stated his concerns about his son Billy and his desire to give EJW safety and stability while Sarah and Billy resolved their domestic problems in some fashion.

The trial court entered a temporary order appointing the grandparents as EJW’s guardians and ordering that Sarah and Billy be permitted reasonable visitation at the discretion of, and supervised by, the grandparents. This order was filed on October 12, 2012.

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Bluebook (online)
2013 Ark. App. 759, 431 S.W.3d 369, 2013 WL 6665454, 2013 Ark. App. LEXIS 793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-wilson-arkctapp-2013.