In re Guardianship of E.M.R.
In re Guardianship of E.M.R.
Opinion of the Court
Christine Hartman (now Smyth) appeals from the Franklin County Circuit Court's order denying her petition to terminate the guardianship of her two minor children, E.R. and D.R. She argues on appeal that the circuit court was clearly erroneous in applying the best-interest-of-the-child standard as opposed to determining the fitness of the natural mother; not finding her to be a fit parent; and failing to determine whether the guardianship's original function remained, as required by Arkansas Code Annotated section 28-65-401. Furthermore, appellant argues that even assuming arguendo that the correct standard was "best interest," the circuit court was clearly erroneous in finding that it would not be in the best interest of the minor children to be placed with their natural mother. We reverse and remand with instructions for the circuit court to enter an order terminating the guardianship.
The guardianship of E.R., born in 2003, and D.R., born in 2005, arose when appellees Marla and Franklin Reardon, the paternal grandparents, filed a petition for emergency and permanent guardianship in August 2013 after appellant's husband, Sam Hartman, was charged with the sexual abuse of E.R. The court entered an ex parte order for emergency temporary guardianship.
That probable cause existed at the time of the entry of the Ex Parte Order for Emergency Custody and probable cause continues to exist. Specifically, the Court finds that Respondent Christine Hartman has subjected the minor child [E.R.] to Sam Hartman's family and homes of his family members in Logan County. The Court takes notice that Mr. Hartman is facing charges of Rape, a class Y felony for engaging in deviate sexual activity with the minor [E.R.] for a period of time from January 1, 2011 until May 6th, 2013, which was during the course of the marriage with Respondent and Mr. Hartman. Mr. Hartman is also facing charges of Tampering with Physical Evidence, Third Degree Assault on the Respondent, and Interfering with Emergency Communication 1st Degree.[2 ] Additionally, the Court finds that Mr. Hartman's family has inappropriately tried to influence the minor child and the court has great concern over the minor children having contact with his family. The minor child testified in court that the situation was troubling her and she felt more safe at the Petitioner's residence.
The court further found that it was in the best interest of both children for the guardianship to be granted. No finding regarding the parental fitness of appellant was made. Appellant was awarded standard unsupervised visitation to take place at the home of her mother, Debra Smyth, with instructions that there was to be no contact between the children and Sam Hartman or his family.
On January 24, 2017, appellant filed a petition to terminate the guardianship. She alleged that since the guardianship order had been entered there had been "material changes in circumstances where it is currently now in the best interest of the minor children to be with their biological mother, [appellant]"; that she was fit and appropriate to care for her children; and that the circumstances had changed such that she had filed for divorce and her husband was currently in the Arkansas Department of Correction. A hearing was held on November 14, 2017. At the hearing, the parties agreed that there had been no finding of unfitness as to appellant in the permanent guardianship order. The court asked, "Is this agreed then that what we are going to be looking at is that Mom needs to set out why things are different than they were as stated in that 2013 order?" Appellant's counsel responded, "We intend to set that out. I believe that the court could also determine whether she is fit or unfit in this case, but we intend to present both."
At the conclusion of the evidence, the court ruled from the bench that the petition to terminate the guardianship would be denied. The court entered an order denying appellant's petition to terminate guardianship, adopting in full the statements of the Reardons' counsel in closing argument at the hearing (attached to the order as an exhibit and incorporated therein), and setting forth additional findings. The court found that "the original order dealt with Petitioner's failure in allowing Mr. Hartman's family to have access to her daughter, with the crux being that she had exhibited poor judgment and did not prioritize her children." The court found that "the Petitioner's lack of prioritizing *18these children and poor judgment was the reason for originally granting this guardianship and those reasons still exist." Specifically, the court faulted appellant for the length of time it took her to get divorced,
We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. In re Guardianship of W.L. ,
Arkansas Code Annotated section 28-65-401(b)(3) (Supp. 2017) provides that "[a] guardianship may be terminated by court order after such notice as the court may require ... [i]f, for any other reason, the guardianship is: (A) [n]o longer necessary; and (B) [n]o longer in the best interest of the ward."
The circuit court did not make a finding of unfitness when it granted the permanent guardianship in 2013 or when it denied the petition to terminate the guardianship. The Reardons argue that the court made a "de facto" finding of unfitness in this case. Specifically, they point to the court's statements from the bench that, going back to the beginning of this case, appellant had shown "a complete disregard for parental responsibility." However, they cite no authority for such a finding and we decline their invitation to recognize a "de facto" finding of parental unfitness. In Guardianship of W.L. ,
Parents have a fundamental right to raise their children. We will not lightly intrude on this fundamental right. We have already said that a guardianship is no longer necessary once a fit parent revokes an earlier-given consent. This is because a fit parent is presumed to be acting in the child's best interest. By petitioning to terminate the guardianship and revoking consent, the fit parent, who has the child's best interest at heart, informs the court that the guardianship is no longer necessary.
In re Guardianship of W.L. ,
Turning now to the termination-of-guardianship statute, we hold that appellant was entitled to the fit-parent presumption that the guardianship was no longer necessary when she so informed the court in her petition to terminate the guardianship.
Regarding the second prong of the statute, whether the guardianship is no longer in the best interest of the wards, see
Reversed and remanded with instructions.
Wood and Womack, JJ., dissent.
The Reardons' son and appellant were divorced, and appellant was the custodial parent. The Reardons' son consented to the guardianship.
According to the affidavit for Sam Hartman's arrest, police came into contact with him on May 6, 2013, when they responded to a domestic-disturbance call, and he agreed to be interviewed. He admitted having sexual contact with E.R. Sam Hartman was eventually convicted of raping E.R. and received a sentence of life imprisonment.
Appellant's divorce decree was entered on July 10, 2017.
In Act 717 of 2017, the General Assembly amended the termination-of-guardianship statute to make both prongs necessary by replacing the word "or" with "and." Act of Mar. 28, 2017, No. 717,
Dissenting Opinion
Because the majority misapplies the fit-parent presumption and departs from our standard of review, I dissent.
First, the majority errs in holding that the appellant was entitled to the fit-parent presumption under In re Guardianship of W.L. ,
Notably, in the present case, the appellant did not consent to the initial guardianship-she contested it. Although, the precise word "unfit" may not have been used, the court found that she was unable to adequately care for her children at the time of the initial guardianship. The court stated, "it was a complete, a complete disregard for parental responsibility, the actions that you [appellant] took.... You chose a rapist over your child." As this appellant was not entitled to the fit-parent presumption, both prongs of the termination of guardianship statute became questions of fact for the circuit court to determine. See
The majority further errs in its lack of deference to the circuit court's factual findings. In termination of guardianship proceedings, we review matters of law de novo, but we will not reverse a finding of fact unless the court is clearly erroneous. Guardianship of W.L. ,
The majority finds the circuit court was clearly erroneous in its finding that the guardianship was no longer necessary or no longer in the best interest of the children because "it appears that the circuit court focused on the success of the children in the guardians' care." The circuit court and the record demonstrate that the concern was much more than this. The circuit court is in the best position to evaluate the witnesses. This particular circuit court presided over this guardianship for six years and multiple hearings. The circuit court specifically held, "So the question now is, is it in the best interest of the children to provide the children back over to you. And I can safely say without any hesitation the answer is a resounding no." Based on a review of the record, I cannot *21say this was clearly erroneous. I would affirm.
Womack, J., joins in this dissent.
Reference
- Full Case Name
- In the MATTER OF the GUARDIANSHIP OF E.M.R. and D.C.R., Minors Christine Hartman v. Franklin Reardon and Marla Reardon
- Cited By
- 5 cases
- Status
- Published