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ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-141
Opinion Delivered November 12, 2014
KARINA GUERRERO TORRES AND
CARLOS ROCHA APPEAL FROM THE HOWARD
APPELLANTS COUNTY CIRCUIT COURT
[NO. PR-2006-46]
V.
HONORABLE TED CAPEHART,
JUDGE
THERESA JONES
APPELLEE AFFIRMED
JOHN MAUZY PITTMAN, Judge
Appellants, Karina Torres and Carlos Rocha, appeal from an order denying their
petition to terminate a 2006 order that granted guardianship over appellants’ child to appellee,
Theresa Jones. Appellants argue that the 2006 guardianship order was improperly entered
because various statutes were not complied with; that the trial court applied the guardianship
statute in an unconstitutional manner by ignoring appellants’ rights, as fit parents, to the care
of their child by requiring them to prove that termination of the guardianship was in the
child’s best interest; and that the trial court erred in not terminating the guardianship because
they did not partially abandon the child, as found by the court, and because they demonstrated
that the reason for the guardianship no longer existed. We affirm.
We review guardianship proceedings de novo, but we will not reverse a finding of fact
by the circuit court unless it is clearly erroneous. Graham v. Matheny, 2009 Ark. 481, 346
S.W.3d 273. A finding is clearly erroneous when, although there is evidence to support it,
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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 probate judge to determine the credibility of the witnesses. Id.
Viewed in light of this standard, the record shows that both of the appellants, and
appellee’s husband (appellant Rocha’s brother), are Mexican citizens residing illegally in the
United States. Appellee is an American citizen employed as a translator. Appellants arrived
in the United States in January 2000. Appellee developed a close relationship with appellants
and was sheltering them in her own home at the time that appellant Karina gave birth to C.R.
in October 2000. Appellee regarded appellants and C.R. as her children, staying extremely
involved with the family. C.R. moved in with appellee when he was four years old and has
resided there since, with appellee making medical and educational decisions regarding his care.
This was done with the consent of appellants, and a formal guardianship order was entered
in 2006. The stated purpose of the order was to provide proper care for C.R. because his
parents did not speak English, and its duration was to be until C.R. reached the age of
eighteen. The parties proceeded under this order amicably until 2013, when they had a
falling out and appellants filed a petition to terminate the guardianship.
During the seven years that he resided with appellee, C.R. developed a parent-child
relationship with appellee, whom he calls Mom. Giving deference to the trial court’s
credibility assessments, the record shows that appellants remained in contact with C.R.,
coming to appellee’s home on holidays and attending C.R.’s sporting events, but their
relationship with him, although familial, was not parental. In contrast, appellants’ relationship
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with their younger son, E.R., was parental; E.R. remained in their home, was raised and
cared for by them, and communicated with them in Spanish. In contrast, C.R. has been
living in another town with appellee; he does not speak Spanish, and appellants do not speak
English.
Collateral Attack on 2006 Guardianship Order
Appellants advance several arguments constituting collateral attacks on the 2006
guardianship order. That order was not appealed from, and appellants’ arguments were not
made below or ruled on by the trial judge in the current proceeding. Generally, judgments
are not subject to collateral attack unless they are void on the face of the record or are issued
by a court lacking jurisdiction. Rose v. Harbor East, Inc., 2013 Ark. 496, 430 S.W.3d 773.
They cannot be collaterally attacked for mere error or irregularity. Here, there is no question
that the 2006 court’s jurisdiction was proper, and the arguments, presented for the first time
on appeal, are addressed to alleged errors or irregularities that depend upon findings of fact
that were never made below. Because the court issuing the guardianship had jurisdiction to
enter such an order, and because the 2006 guardianship order is not void on the face of the
record, the arguments collaterally attacking that order are not properly before us.
Unconstitutional Application of Guardianship Statute
Appellants advance several constitutional arguments for the first time on appeal.
Arkansas appellate courts do not consider arguments, even constitutional ones, that are raised
for the first time on appeal. Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996). In any
event, appellants’ arguments are without merit because they are based on a false premise, i.e.,
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that the trial court ignored the presumption that fit parents are entitled to the care, control,
and custody of their children and placed upon them the burden of showing that termination
of the guardianship was in the child’s best interest. The trial court clearly did not do so. The
parties agreed during opening statements that the burden was on the parents to show that the
reason for the guardianship no longer existed and that, if such were shown, the burden would
shift to the guardian to show that termination of the guardianship was contrary to the ward’s
best interest. This is in accord with both Arkansas and federal law, see In re Guardianship of
S.H., 2012 Ark. 245, 409 S.W.3d 307, and it was demonstrably employed by the trial court
in its lengthy ruling from the bench, where it acknowledged that the parents were the
presumptive custodians and expressly found that appellants failed to meet their burden of
proving that the guardianship was no longer necessary. The trial court, in the disjunctive, also
opined that termination of the guardianship would be contrary to the best interest of the
ward, but it carefully avoided saying that the parents had the burden of proof on best interest.
Refusal to Terminate Guardianship
Here, appellants argue that the trial court erred in finding that the reason for the
guardianship still existed and that they abandoned their parental roles with respect to C.R.
We find no clear error. With respect to the former, the stated reason for the guardianship in
the 2006 order was that the parents were unable to speak English, and they are still unable to
speak English. Even assuming the truth of appellants’ argument that translators are more
generally available now than they were in 2006, the problem is compounded, rather than
lessened, because in the interim appellants have failed to ensure that C.R. learned Spanish, and
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they therefore cannot effectively communicate with him in the home, where official
translators are not provided.
With respect to the latter, we cannot say that the trial court erred in finding that
appellants abandoned their parental roles. Again, appellants’ inability to communicate with
the child is an outstanding example. In addition, appellants clearly allowed parental bonds of
affection to develop between C.R. and appellee and for appellee to take on the role of parent.
This has long been recognized to be a crucial factor in dissipating the presumption in favor
of care, control, and custody by a parent:
Courts are very reluctant to take from the natural parents the custody of their
child, and will not do so unless the parents have manifested such indifference to its
welfare as indicates a lack of intention to discharge the duties imposed by the laws of
nature and of the state to their offspring suitable to their station in life. When,
however, the natural parents so far fail to discharge these obligations as to manifest an
abandonment of the child and the renunciation of their duties to it, it then becomes
the policy of the law to induce some good man or woman to take the waif into the
bosom of their home, and when they have done so and, through their attentions to it,
have learned to love it as if it were their very own child, this bond of affection will not
then be severed, although the natural parent may later repent his breach of the laws of
nature and of the state and offer to resume the duties and obligations which he should
never have ceased to perform.
Holmes v. Coleman, 195 Ark. 196, 198-99, 111 S.W.2d 474, 476 (1937); see also Lloyd v. Butts,
343 Ark. 620, 37 S.W.3d 603 (2001).
Affirmed.
GLADWIN, C.J., and WYNNE, J., agree.
Cross, Gunter, Witherspoon & Galchus, P.C., by: Misty Wilson Borkowski and Abtin
Mehdizadegan, for appellants.
Jason Horton Law Firm, by: Jason Horton, for appellee.
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