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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-365
Opinion Delivered DECEMBER 18, 2013
SARAH WILSON
APPELLANT APPEAL FROM THE OUACHITA
COUNTY CIRCUIT COURT
V. [NO. PR-12-125-3]
HONORABLE EDWIN KEATON,
RANDY WILSON and DONNA JUDGE
WILSON
APPELLEES AFFIRMED
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
Ouachita 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.
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App. 351, ___ S.W.3d ___. 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
superior 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
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to 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
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guardianship 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.
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Sarah limited the record on appeal and did not include the original petition for
temporary and permanent guardianship filed by the grandparents.
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Sarah 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 EJW’s 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.
Shortly after that hearing, Sarah packed up her belongings and moved to northwest
Arkansas, where a male friend of hers lived. This male friend, Scott Parker, happened to be
in Bridgeway at the same time she was. She signed a lease for an apartment in Fort Smith,
but she changed her mind within days and came back to Camden to live with her mother.
Sarah filed a formal response in opposition to temporary and permanent guardianship
on November 12, 2012, after she had hired an attorney to represent her. Sarah contended,
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in part, that EJW received WIC benefits and Medicaid coverage, and that guardianship over
EJW should be terminated.
The final hearing was conducted over two days, December 27 and 28, 2012. Sarah
testified that she earned her room and board by living with and taking care of her
grandmother; that her mother paid any extra bills; that she earned $70 one time for cleaning
an elderly man’s house; and that she received occasional child support for her oldest son. Sarah
contended that her grandmother’s home had been substantially cleaned and repaired, offering
photographs to prove it. Sarah explained her use of prescription medications, including long-
standing prescriptions for narcotic pain medication to treat arthritis and endometriosis. She
had been permitted limited, supervised visitation with EJW, but she believed that Randy and
his wife Donna were trying to take EJW away without a good reason. Sarah asserted that her
three children deserved to be together, with her.
Sarah’s mother testified that she paid Sarah’s bills in exchange for Sarah taking care of
her mother (Sarah’s grandmother). Sarah’s mother said that Sarah received food stamps for
herself and her two young sons. Various friends and co-workers of Sarah’s mother, as well
as Sarah’s pastor, testified to their observations in public of Sarah being a good mother.
The paternal grandparents testified to having a strong bond with EJW, having had her
most weekends leading up to their original petition for guardianship. The grandparents stated
that they were financially and emotionally capable of providing a safe, secure home for EJW,
and that they only wanted to provide for EJW’s safety and well being when it was jeopardized
by both Sarah and Billy.
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After hearing testimony and taking evidence, the trial judge took the matter under
advisement. A four-page letter opinion followed on December 31, 2012, which was
incorporated into the guardianship order on appeal. The letter recited the relationship of the
parties and the grandparents’ desire to be appointed guardian of EJW. The letter opinion
recited the trial court’s understanding that in guardianship proceedings, there is a statutory
parental preference, but that this preference is not absolute but rather subservient to the best
interest of the child. The trial court found the grandparents suitable and qualified to be
guardians, but stated its obligation to consider the parents’ suitability to serve as guardians.
Billy had earlier consented to the grandparents being guardians. Nonetheless, the trial
court’s letter opinion noted Billy’s history of domestic violence, his current incarceration, and
his drug problem as reasons that Billy was unsuitable to care for EJW or any other child.
The letter opinion recounted Sarah’s circumstances and the testimony of witnesses she
brought on her behalf, who recounted observations of her behaving as a suitable parent. The
letter opinion then set forth the following findings and conclusions regarding Sarah:
Despite what these witnesses have seen publicly, respondent’s life away from the public
eye has been quite chaotic. Respondent has subjected her children to several and
repeated acts of domestic violence over the last year and a half. . . . SarahWilson
testifies that it was a mistake to go back to Billy Wilson, and that now he is not
allowed near her boys or anywhere near her grandmother’s property. . . . Respondent
Sarah Wilson lacks credibility on this point, and the Court does not believe that she
has ended her relationship with Billy Wilson. . . . From the evidence, the Court finds
and concludes that it is in the best interest of [EJW], that a guardianship of the person
be granted in favor of [the grandparents].
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A formal order was filed of record on January 2, 2013, permitting Sarah and Billy reasonable
visitation with EJW at the discretion of and under the supervision of the grandparents. Sarah
filed a notice of appeal from this order.
Sarah appeals, arguing two points for reversal: (1) that permanent guardianship should
not have been ordered where the reasons that supported temporary guardianship were
resolved; and (2) that it was not in EJW’s best interest to be placed with anyone other than
Sarah, her biological mother. Sarah has failed to demonstrate clear error in the findings of the
circuit court.
Sarah asserts in her appellate brief that the circuit court failed to give any consideration
to the natural-parent preference in the guardianship statutes and case law. We disagree. The
trial court’s letter opinion, which was incorporated into the order on appeal, specifically
addresses the suitability of the natural parents to be guardians over EJW. Sarah also asserts that
the reasons that supported a temporary guardianship were no longer in existence at the time
of the permanent guardianship. Sarah admits, though, that one problem that “arguably still
existed . . . involved the less than appropriate relationship” of Sarah with Billy. This was the
primary problem that was an impediment to Sarah being considered a qualified and suitable
guardian for EJW, and it supports the trial court’s decision.
Sarah’s secondary point on appeal contends that it was not in EJW’s best interest for
the grandparents to be named guardians because it results in a separation of EJW from her two
half-siblings. We note that the hesitation to separate siblings is not applied with equal force
when the relationship is among half-siblings. Donato v. Walker, 2010 Ark. App. 566, 377
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S.W.3d 437. Trial courts are not always able to provide flawless solutions to unsolvable
problems, especially where there are only limited options available. Id. Here, the trial judge
was faced with a decision focused on EJW’s best interest, and we cannot conclude on de novo
review of this record that his decision was clearly erroneous. Sarah asserts also that the trial
court’s letter opinion did not set forth the words, “best interest” or delineate the relevant
factors bearing on EJW’s best interest. To the contrary, a trial court’s order need not contain
“magic words” if it is obvious that the trial court considered the child’s best interest. Baber
v. Baber, 2011 Ark. 40, 378 S.W.3d 699.
Sarah raises additional arguments surrounding a parent’s fundamental due-process right
to raise her child, implicating constitutional concerns. However, those arguments are raised
for the first time on appeal and are, therefore, not preserved for our review. TEMCO Const.,
LLC v. Gann, 2013 Ark. 202, ___ S.W.3d ___; Smith v. Thomas, 373 Ark. 427, 284 S.W.3d
476 (2008).
We hold that the trial court applied Arkansas case law and statutes correctly in this
instance, and we affirm its findings of fact as not clearly erroneous.
Affirmed.
WYNNE and BROWN, JJ., agree.
Mary Thomason, for appellant.
Harrell, Lindsey & Carr, P.A., by: Christina S. Carr, for appellees.
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