Witham v. Beck

428 S.W.3d 537, 2013 Ark. App. 351, 2013 WL 2353792, 2013 Ark. App. LEXIS 378
CourtCourt of Appeals of Arkansas
DecidedMay 29, 2013
DocketNo. CV-12-1052
StatusPublished
Cited by6 cases

This text of 428 S.W.3d 537 (Witham v. Beck) 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
Witham v. Beck, 428 S.W.3d 537, 2013 Ark. App. 351, 2013 WL 2353792, 2013 Ark. App. LEXIS 378 (Ark. Ct. App. 2013).

Opinion

ROBERT J. GLADWIN, Chief Judge.

_JjThe White County Circuit Court granted appellee Michelle Beck’s petition to terminate guardianship. Appellant Tiffany Witham contends on appeal that the circuit court erred by requiring her to prove that Beck was an unfit parent. We affirm.

Witham and Beck lived together and were involved in a romantic relationship when Beck, after an affair, became pregnant with J., who was born November 28, 2005. A few months after J. was born, Beck returned to work as a truck driver, providing financially for J., and Witham became the primary caretaker for J. When the parties’ romantic relationship ended in 2008, Beck moved out, and J. remained with Witham. Beck continued to send support to Witham for J.

When Beck decided to join the military, she and Witham agreed that Witham would have guardianship over the person of J., as the Army required that, before joining the military, a single parent must establish a guardianship for her minor children. The order ^establishing the guardianship was filed October 28, 2008, and appointed Witham as guardian until J. attained the age of majority.

On April 21, 2010, Beck filed a petition to terminate the guardianship alleging that it was no longer necessary, as after her first year of service, the military would allow her to have custody of her child. Witham responded, alleging that she had been the primary caretaker for the child, that the child had little contact with Beck during the guardianship, that Beck was unable to properly care for the child, and that it would not be in the child’s best interest to terminate the guardianship. During the hearing on Beck’s petition, the parties came to an agreement, and an order was filed on August 23, 2010, wherein the petition to terminate guardianship was withdrawn, and visitation and child support were established.

On February 13, 2012, Beck filed another petition to terminate guardianship, this time alleging that she had been discharged from the military and that it would be in the best interest of J. to terminate the guardianship. Witham responded that she was the fit and proper person to have custody of the child and that it was in the child’s best interest to remain in her care.

At the hearing, twenty-seven-year-old Witham testified that she works part time on the weekends, is a full-time student at UCA, lives with her mother, is supported by her family, and receives child support from Beck. She claimed that she did not remember that the reason the guardianship was initiated was that Beck was going into the military, but she admitted that Beck could not have joined the military without the guardianship. She said that Beck loved the child but had never been the primary caretaker. She acknowledged that |aBeck had always worked and provided for the child financially. She told the circuit court that she thought the guardianship was still necessary because J. had lived in the same home her whole life and that Beck did not look out for J.’s best interests. She voiced her concerns that Beck was taking international studies and that Beck might be willing to take J. anywhere with her.

Beck testified that she lives in White Hall, Arkansas, with her grandmother. She stated that she had joined the military, which required that a guardianship be established for J. She claimed that since her honorable discharge, she receives $600 per month disability for a military injury and $1644 per month in unemployment benefits. She said that she would receive these payments for about a year and a half, until she obtains her bachelor’s degree in international relations. In the military, she was a Farsi linguist, and she also speaks Dari. She claimed that she had a home for the child in White Hall and that she had extended family support in the area. She stated that if it had not been for the military, she would not have consented to a guardianship.

The trial court terminated the guardianship, finding as follows:

2. The U.S. Military requires that any single parent, before joining the military, must establish a guardianship for their minor child or minor children. This requirement constituted the condition that necessitated the guardianship over
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5. Michelle Beck joined the Army after the guardianship was established. She has been honorably discharged and she has returned to civilian life. The condition necessitating the guardianship has been removed.
6. [J.] is not a mere creation of the state.
|47. The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.
8. The best interest of [J.] is subject to the overriding principle that the relationship between parent and child is constitutionally protected.
9. Tiffany Witham has the burden of rebutting the presumption that termination of the guardianship is in the best interest of [J.].
10. The constitutional protection of a parent’s fundamental right to parent requires a finding of parental unfitness to continue an established guardianship over a parent’s objection.
11. Michelle Beck has not previously been found to be an unfit parent nor does this Court find her to be an unfit parent.
12. Tiffany Witham failed to demonstrate good cause or reason to overcome the presumption that Michelle Beck has a superior right to the custody of [J.]
13. The guardianship established by the Court over [J.] is hereby terminated.

From this order, Witham filed a timely notice of appeal.

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. Furr v. James, 2013 Ark. App. 181, 427 S.W.3d 94. 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. 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 chancellor to observe the | .¡parties carries a greater weight than one involving the custody of minor children.” Ford v. Ford, 347 Ark. 485, 491, 65 S.W.3d 432, 436 (2002) (quoting Taylor v. Taylor, 345 Ark. 300, 304, 47 S.W.3d 222, 224 (2001)).

When there has been a change of circumstances, the primary consideration for the trial court in awarding custody, or guardianship, of children remains the welfare and best interest of the children involved.

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Bluebook (online)
428 S.W.3d 537, 2013 Ark. App. 351, 2013 WL 2353792, 2013 Ark. App. LEXIS 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witham-v-beck-arkctapp-2013.