In the Matter of the Guardianship of S.H.

Cite as 2015 Ark. 75

SUPREME COURT OF ARKANSAS
No. CV-14-475

IN THE MATTER OF THE Opinion Delivered February 26, 2015
GUARDIANSHIP OF S.H., a minor

TAMERA GRACE TROESKEN APPEAL FROM THE ARKANSAS
APPELLANT COUNTY CIRCUIT COURT
[NO. PR-08-74]
V.
HONORABLE DAVID G. HENRY,
LARRY HERRINGTON AND JUDGE
DONNA HERRINGTON
APPELLEES
REVERSED AND REMANDED.

RHONDA K. WOOD, Associate Justice

After remand from this court, the circuit court again denied a natural parent’s

petition to terminate a guardianship over her child. We hold that the circuit court applied

a legal standard that failed to safeguard the natural parent’s fundamental right with respect

to the care, custody, and control of her child. We therefore reverse and remand for the

circuit court to enter an order returning the child to her mother’s custody.

I. Procedural History

Tamera Troesken gave birth to S.H. in 2005. S.H.’s biological father is Scott

Herrington. In 2008, Tamera consented to a permanent guardianship over S.H. in favor of

Scott’s parents, Larry and Donna Herrington. When the hearing took place, Tamera did

not have counsel and was living with the Herringtons, who had retained counsel for the

guardianship proceedings. A week or two following that hearing, the Herringtons forced

Tamera to leave their home without allowing her to take S.H. Sixteen months later (June
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2010), Tamera withdrew her consent and filed a petition to terminate the guardianship.

The Herringtons objected to termination, and the proceedings have been ongoing since.

The circuit court first held a hearing on Tamera’s petition in April 2011. We

recounted the testimony from that hearing in our first opinion. See In re Guardianship of

S.H., 2012 Ark. 245, 409 S.W.3d 307 (In re Guardianship of S.H. (I)). There, Tamera

testified that she had consented to the guardianship in 2008 because her life was unstable,

but was now, at the time of the hearing, ready to regain custody of S.H. Following the

hearing, the circuit court ruled that Tamera failed to meet her burden that the

guardianship was no longer necessary and her burden that termination of the guardianship

was in S.H.’s best interest. As a result, the court denied Tamera’s petition to terminate the

guardianship.

Tamera appealed to our court. We ruled that the guardianship statute, as applied to

Tamera, was an unconstitutional violation of her fundamental liberty interest with respect

to the care, custody, and control of her child. In re Guardianship of S.H. (I), 2012 Ark. 245,

at 15, 409 S.W.3d at 316. We reversed and remanded the case to the circuit court to

consider the case in light of the following holding:

A natural parent who has not been deemed unfit is entitled to the presumption that
he or she is acting in the child’s best interest, even after consenting to a
guardianship. Therefore, when a natural parent, who has not been deemed unfit
and who has consented to a guardianship, files a petition to terminate that
guardianship, that parent must put forth evidence that the guardianship is no longer
necessary. Once the court is satisfied that the conditions necessitating the
guardianship have been removed, the guardians shoulder the burden of rebutting
the presumption that termination is in the child’s best interest.

Id.

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II. Hearing on Remand

After remand, the circuit court held three separate hearings over the space of ten

months. The first hearing took place in October 2012. There, Tamera testified that she

still lived in Minnesota and had moved in with her mother. The two of them shared a

four-bedroom house, which her mother owned; her mother lived upstairs, and Tamera

lived downstairs. Since the first hearing in 2011, Tamera had given birth to another child.

Tamera was not married to the child’s father. Rather, she testified that she had been in a

nearly nine-month relationship with another man, Jeff Dawson. Tamera admitted that she

often spent the night with Dawson, who had a ten-year-old daughter, and that S.H. had

accompanied her on at least one of her overnight visits to Dawson’s house.

Tamera further testified that she had quit her job as a nursing aide and started

taking online nursing classes to be a medical assistant in order to eventually obtain a better

job and this allowed her to spend time at home with her new baby. She also earned

income babysitting her nephew. She testified that she does not use drugs or alcohol and

had exercised all her visitation with S.H. since the last hearing. Other character witnesses

testified on Tamera’s behalf, including Jeff Dawson, Tamera’s sister, and Tamera’s uncle.

All three testified that Tamera was a capable parent.

Donna Herrington testified as well. She said that her son, Scott, was currently at a

drug-rehabilitation program in Iowa. Donna thought Tamera neglected S.H. by not being

more involved when S.H. was in Arkansas, even though Donna had no evidence that

Tamera neglected S.H. during S.H.’s visits to Minnesota. After considering the evidence,

the court initially ruled that Tamera “has gone forward with evidence that the

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guardianship is no longer necessary.” The court then allowed the Herringtons to present

evidence rebutting the presumption that terminating the guardianship was in S.H.’s best

interest.

First, some of S.H.’s teachers testified that S.H. was a good student and appeared

well-adjusted in their classrooms. Then Larry Herrington testified that S.H. takes dancing

classes, that he and his wife provide S.H. with school supplies, attend parent-teacher

conferences, and provide S.H. with all necessary material needs. Once Larry’s testimony

ended, the court recessed and continued the case until June 2013.

The only person to testify at the second hearing in June 2013 was a social worker,

Lesa Doan. 1 Doan testified that she started treating S.H. in 2010 and had met with S.H.

every two weeks. Doan had also incorporated Tamera into her sessions with S.H. pursuant

to the circuit court’s order. Between April 2011 and September 2012, Doan met with

Tamera via Skype on five occasions, but she also testified that Tamera missed six other

scheduled Skype sessions. Doan testified that Tamera would not notify her if she was

going to miss one of the sessions. Doan’s ultimate opinion was that S.H. should continue

to stay with the Herringtons; if S.H. lived with her mother, Doan opined, it would

“adversely affect” S.H.

The third hearing on remand took place in August 2013. The only person to testify

was the attorney ad litem, who also issued a report. Like the social worker, he

recommended that the guardianship remain in place and that S.H. continue to stay with

her grandparents.

1
Doan had also testified during the April 2011 hearing.
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After the hearing the court issued a letter opinion. Contrary to its earlier ruling

when Tamera had rested her case, the court held that Tamera had not put forth sufficient

evidence to show that the guardianship was no longer necessary. Even so, the court made

an alternative ruling that the Herringtons had rebutted the presumption that termination

of the guardianship was in S.H.’s best interest.

III. Standard of Review

We review probate 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,

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.

IV. Burden Going Forward

When we decided this appeal the first time, we held that Tamera’s initial burden

was to “put forth evidence that the guardianship is no longer necessary.” In re Guardianship

of S.H. (I), 2012 Ark. 245, at 15, 409 S.W.3d at 316 We did not specify whether this was

a “burden of going forward or . . . a burden of proof.” Id. at 22, 409 S.W.3d at 320

(Goodson, J., dissenting). We take the opportunity now to clarify the burden. A fit parent

who consented to a guardianship puts forth sufficient evidence, and meets the burden

going forward, by revoking consent and informing the court that the conditions

necessitating the guardianship no longer exist. This is because a fit parent is presumed to

act in his or her child’s best interest. Troxel v. Granville, 530 U.S. 57 (2000); Linder v.

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Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). Requiring any more from a fit parent would

violate that parent’s constitutional right to make decisions concerning the care, custody,

and control of that parent’s children. Thus, a fit parent is presumed to act in the child’s

best interest when consenting to the guardianship and, later, when terminating the

guardianship.

The circuit court erred when ruling on Tamera’s initial burden going forward.

Again, the court initially ruled that Tamera had “gone forward with evidence that the

guardianship is no longer necessary.” The court then allowed the Herringtons to rebut the

presumption that termination of the guardianship was in S.H.’s best interest. However, the

court’s letter opinion stated the opposite by finding “that Tamera did not put forth

evidence sufficient to satisfy the court that the conditions necessitating the guardianship

have been removed.” So the court allowed Tamera to proceed through the remainder of

the October 2012 hearing and two more subsequent hearings without alerting her that the

court had changed its mind about whether she had truly met her burden. While this

reverse finding raises concerns, we focus instead on the court’s written order, which

clearly misapplies the law. “To the extent that the court’s bench ruling conflicts with its

written order, if at all, the written order controls over the court’s oral ruling.” Stills v.

Stills, 2010 Ark. 132, at 12, 361 S.W.3d 823, 830.

Specifically, the court’s order stated that “after comparing the circumstances which

existed at the time the guardianship was granted and the circumstances which exist now,

the court concludes that there has not been any material change.” This ruling was clearly

erroneous: by bringing a petition to terminate a guardianship to which she had consented,

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Tamera did not have the burden to show a material change in circumstances. “A change-

of-custody analysis using the material-change-of-circumstances standard should not be

done in termination-of-guardianship cases.” Graham v. Matheny, 2009 Ark. 481, at 15, 346

S.W.3d at 281. The court erred by converting a termination-of-guardianship case into a

change-of-custody case, which is the incorrect analysis. In a termination-of-guardianship

case, a parent’s only burden is to put forth evidence that the guardianship is no longer

necessary. Ark. Code Ann. § 28-65-401(b)(3) (Repl. 2012); In re Guardianship of S.H.(I),

supra.

Therefore, in this case, the circuit court erred when it ruled that Tamera failed to

meet her burden going forward. This “burden” is neither an affirmative burden of proof

nor a burden to prove a “material” change. Here, Tamera consented to the guardianship

in August 2008. There has never been a finding that she was unfit. (Indeed, the

psychologist testified at the April 2011 hearing that Tamera was a fit parent.) When

Tamera withdrew her consent in her June 2010 petition to terminate the guardianship and

testified that the conditions necessitating the guardianship no longer existed, she met her

burden going forward that the guardianship was no longer necessary.

V. Best Interest

The circuit court made an alternative ruling: even if Tamera met her initial burden,

the Herringtons rebutted the presumption that terminating the guardianship was in S.H.’s

best interest. This ruling was clearly erroneous. The circuit court failed to credit Tamera’s

fundamental right to care for her daughter and gave no weight to her rights as the natural

parent. We explained in our last opinion that the court must give Tamera’s status as a

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parent some consideration. In re Guardianship of S.H., 2012 Ark. 245, at 14, 409 S.W.3d at

316. To appropriately protect Tamera’s rights as a fit, natural parent, the circuit court

should have held the guardians to a clear-and-convincing standard of proof.

“On de novo review of a fully developed record, when we can plainly see whether

the equities lie, we may enter the order that the circuit court should have entered.” Ingle

v. Ark. Dep’t of Human Servs., 2014 Ark. 53, at 9, 431 S.W.3d 303, 308. This is a probate

matter where a fit mother consented to guardianship and has been attempting to regain

custody since June of 2010. While we agree with the dissent’s position—that when

possible remand is the preferred option—this case involves a young child who has been

held in limbo by our court system for the last five years. There is a reason this court

conducts a de novo review of the record: there are cases, like this one, where it becomes

necessary for us to consider the evidence and apply the appropriate standard. We do so in

this case and hold that the Herringtons failed to rebut the presumption, by clear and

convincing evidence, that termination of the guardianship was in S.H.’s best interest.

It should be noted at the outset that our previous opinion did not state whether the

Herringtons’ burden was by a preponderance of the evidence or clear and convincing

evidence. We thus failed to provide the circuit court with direction on this issue. But we

cannot compound that problem by refusing to set it out clearly now. Different states have

taken different approaches to the burden the guardian carries when a fit parent brings a

petition to terminate the guardianship. Compare In re D.I.S., 249 P.3d 775, 786 (Colo.

2011) (preponderance of the evidence) with In re Guardianship of Reena D., 35 A.3d 509,

515 (N.H. 2011) (clear and convincing evidence). And in another context, Arkansas

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requires clear and convincing proof of a child’s best interest in a termination-of-parental-

rights case. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2013).

The Nebraska Supreme Court has explained the purpose of consensual

guardianships and why a clear-and-convincing standard of proof is necessary to protect a

natural parent’s constitutional rights:

[G]uardianships are intended to encourage parents experiencing difficulties to
temporarily turn over the custody and care of their children—safe in the
knowledge that they will be able to regain custody in the future. This policy would
be frustrated if guardianships were permanent or resulted in the automatic
termination of parental rights, because parents would be less likely to voluntarily
petition for a guardian to be appointed to care for their minor children. Therefore,
children would unnecessarily be placed in jeopardy in many circumstances.

....

Thus, we hold that in guardianship termination proceedings involving a
biological or adoptive parent, the parental preference principle serves to
establish a rebuttable presumption that the best interests of the child are served by
reuniting the minor child with his or her parent. In other words, an individual
who opposes the termination of a guardianship bears the burden of proving by
clear and convincing evidence that the biological or adoptive parent either is unfit
or has forfeited his or her right to custody. Absent such proof, the constitutional
dimensions of the relationship between parent and child require termination of the
guardianship and reunification with the parent.

In re Guardianship of D.J., 682 N.W.2d 238, 246 (Neb. 2004); see also In re Guardianship of

Reena D., 35 A.3d at 515 (holding that a clear-and-convincing standard of proof applies

to the guardian’s burden in a proceeding to terminate a guardianship established by

consent); Boddie v. Daniels, 702 S.E.2d 172, 175 (Ga. 2010) (requiring guardian to prove

by clear and convincing evidence that terminating the guardianship would harm the

child); Tourison v. Pepper, 51 A.3d 470, 474 (Del. 2012) (same).

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We agree with those states that require the guardians to meet a clear-and-

convincing burden of proof. To hold otherwise would place the natural parents and

guardians on an equal plane, making a termination-of-guardianship case just like a court’s

initial custody decision in a divorce case or in a child-custody modification. In custody

cases, the court weighs best-interest against placing the child with two biological parents. 2

Ark. Code Ann. § 9-13-101(a)(1)(A)(i) (Supp. 2013) (“In an action for divorce, the award

of custody of a child of the marriage shall be made without regard to the sex of a parent

but solely in accordance with the welfare and best interest of the child.”).

But in guardianships, the decision is generally between a natural parent and a non-

natural parent. See, e.g., Graham, supra (biological mother vs. paternal grandmother); Smith

v. Thomas, 373 Ark. 427, 284 S.W.3d 476 (2008) (biological father vs. maternal

grandparents); Crenshaw v. Crenshaw, 2012 Ark. App. 695 (biological mother vs. paternal

grandparents). Fit, natural parents who consent to a guardianship need additional

protection in seeking to terminate the guardianship. A preponderance-of-the-evidence

standard would fail to safeguard a natural parent’s fundamental right to parent his or her

children. The circuit court cannot simply weigh best-interest equally between the natural

parent and the non-natural parent. Some additional weight must be given to the natural

parent’s fundamental rights, which a clear and convincing standard can provide.

In this case, the court made only the following findings as to how the Herringtons

rebutted the presumption that termination of the guardianship was in S.H.’s best interest:
2
Some exceptions obviously apply for purposes of visitation. Ark. Code Ann. § 9-
13-103 (Repl. 2009) (grandparent visitation); Ark. Code Ann. § 9-13-102 (sibling
visitation); Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005) (stepparent
visitation).
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Since their appointment as guardians, the Herringtons have provided, and
continue to provide, a stable, loving and supportive home, providing for both her
physical and emotional needs. Although the Herringtons continue to maintain
counseling for S.H., all things considered, the evidence indicates that S.H. is a
well-adjusted child. She is in the third grade where she is an exceptional student.
She is also involved in extracurricular activities, and has a number of friends with
whom she spends time. The Herringtons and S.H. have developed a strong bond.

The above fails to clearly and convincingly rebut the presumption that terminating the

guardianship was in S.H.’s best interest. By the time the court issued this letter opinion,

S.H. had been in the Herringtons’ custody for nearly five years (October 2008–September

2013). No one disputed that the Herringtons were loving grandparents and took great

care of S.H., and, one would expect, a child will have bonded with loving grandparents

over a five-year period. But this is not a fact or piece of evidence that will, in itself, rise to

clear and convincing evidence that the child should remain with the guardians.

What’s more, only sixteen months after the guardianship was entered, Tamera filed

a petition to terminate and has spent the subsequent five years trying to regain custody of

her daughter. Many of the delays in this case have resulted result not from Tamera’s

indifference to her child but from the natural unfolding of the legal process. 3 The longer

the case goes on, the stronger the bond between the Herringtons and S.H. will be, and

Tamera has not been the cause of extending the case five years. Nothing Tamera can do

will rebut this or surmount this. So to hold that the bond between S.H. and her

guardians—in itself—trumps Tamera’s right to care for her child would effectively

annihilate her fundamental right to be a parent. We have acknowledged that “the stability

of a child’s environment and how well the child is functioning become critical factors, in
3
The April 2011 hearing was delayed twice upon the Herringtons’ request, and
there was a further delay because the ad litem failed to appear at the hearings.
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addition to other factors, in deciding the child’s best interest.” Graham, 2009 Ark. 481, at

15, 346 S.W.3d at 281. Obviously S.H.’s stability and proper functioning are still critical

factors; however, they are factors that must contend with Tamera’s fundamental right to

make decisions regarding S.H.’s custody.

This does not mean that Tamera’s actions since she consented to the guardianship

are irrelevant. But the evidence generally showed that Tamera, while not an ideal parent,

remained a fit parent, which is all that matters for constitutional purposes. No evidence

was shown that Tamera could not also provide the love and affection that the grandparents

did. Even the social worker testified as to the affection between Tamera and S.H.

Moreover, Tamera was going to nursing school, had family support in Minnesota, and has

spent nearly five years attempting to regain custody of her daughter.

Although the court was silent about the weight it gave the testimony from the

social worker and the ad litem, both recommended that the guardianship remain in place.

Tamera argues that the ad litem’s testimony should be discounted because he failed to

comply with an Administrative Order. 4 She further argues that the circuit court should

have excluded, under Daubert, parts of Doan’s testimony that were based on art therapy

and play therapy.

We acknowledge these concerns, but they play no part in our decision for two

reasons. First, the court did not explicitly base its best-interest decision on Doan’s therapy

interpretations or on the ad litem’s recommendation. So even if there is a Daubert

violation or a failure to comply with an administrative order, no prejudice exists. “On
4
“An attorney ad litem shall appear at all hearings to represent the best interest of
the child.” Ark. Sup. Ct. Admin. Order No. 15.1(5)(c) (2014).
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appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an

abuse of that discretion nor will we reverse absent a showing of prejudice.” Aka v. Jefferson

Hosp. Ass’n, Inc., 344 Ark. 627, 645, 42 S.W.3d 508, 521 (2001). Second, these two

arguments really go to the weight and credibility of the testimony from the ad litem and

social worker. These matters rest with the circuit court. And so, on appeal, we follow the

circuit court’s lead and leave undisturbed its decision to give little weight to these

testimonies. The court’s letter opinion reflected that the court based its best-interest

decision solely on the bond S.H. had formed with the Herringtons, which, as stated

above, cannot rebut the presumption by clear and convincing evidence that the

guardianship should be terminated.

Therefore, we reverse the court’s order and remand for the circuit court to enter an

order returning S.H. to Tamera’s custody and terminating the Herringtons’ guardianship.

Tamera’s second point on appeal is that the circuit court erred by requiring her to

continue to participate in S.H.’s counseling with Lesa Doan. This issue is now moot

because we are reversing the court’s order, and S.H. will be returned to her mother’s

custody.

VI. Law of the Case

The law of the case doctrine provides that a decision of an appellate court

establishes the law of the case for the trial upon remand and for the appellate court itself

upon subsequent review. Clinical Study Ctrs., Inc. v. Boellner, 2012 Ark. 266, 411 S.W.3d

695. The doctrine of law of the case prohibits a court from reconsidering issues of law and

fact that have already been decided in a prior appeal. Id. The doctrine requires us to

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adhere to our decision on the first appeal even though we might think it to have been

wrong. Potter v. Easley, 288 Ark. 133, 703 S.W.2d 442 (1986).

Thus, under law of the case, we must adhere to the two-step, burden-shifting

procedure from In re Guardianship of S.H. (I), which we summarize as follows. A fit parent

who consented to a guardianship puts forth sufficient evidence to terminate the

guardianship, and meets the burden going forward, by revoking consent and informing

the court that the conditions necessitating the guardianship no longer exist. If the

guardians desire the guardianship to stay in place, they must rebut the presumption, by

clear and convincing evidence, that termination of the guardianship is in the child’s best

interest. The circuit court must always consider the natural parent’s right to parent his or

her child in that decision.

This two-step process has been derived from In re Guardianship of S.H. (I) and

Graham. We acknowledge it is not entirely consistent with the guardianship statutes,

which provide that a court may terminate a guardianship “if, for any other reason, the

guardianship is no longer necessary or for the best interest of the ward.” Ark. Code Ann. §

28-65-401(b)(3). This statute is disjunctive, which ostensibly means a guardianship can be

terminated for either of the above reasons. However, in Graham, this court held that even

if the guardianship is no longer necessary, “[w]hat is in the best interest of the child must

always be examined under the first standard to determine whether the guardianship should

be terminated.” 2009 Ark. 481, at 14, 346 S.W.3d at 281. So the Graham court converted

a disjunctive statute into a conjunctive statute. See id. at 19, 346 S.W.3d at 285 (Hannah,

C.J., dissenting) (“[N]either this court nor the court of appeals has applied the proper

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standard on termination of a guardianship set out in the statute.”). The constraints of the

law of the case prevent this court from following the cardinal rule of statutory

interpretation, which is “to construe the statute just as it reads, giving the words their

ordinary and usually accepted meaning in common language.” McMillan v. Live Nation

Entm’t, Inc., 2012 Ark. 166, at 4, 401 S.W.3d 473, 476.

Reversed and remanded.

BAKER and HART, JJ., concur.

HANNAH, C.J., and DANIELSON, J., dissent.

KAREN R. BAKER, Justice, concurring. I agree with the majority that this case

must be reversed. However, because the majority employs a different analysis than I

would, I concur.

This appeal stems from the Arkansas County Circuit Court’s November 24, 2008

appointment of Donna and Larry Herrington, appellees, as guardians of S.H., their minor

granddaughter. Tamera Troesken, appellant, is S.H.’s mother. Tamera initially consented

to the appointment of guardianship, but on June 25, 2010 filed a petition to terminate the

guardianship. On June 13, 2011, the circuit court denied Tamera’s petition. Tamera

appealed and in In re Guardianship of S.H., 2012 Ark. 245, 15, 409 S.W.3d 307, 316, we

reversed the circuit court holding:

The application of Ark. Code Ann. § 28-65-401 in this instance violated Tamera’s
constitutional right. A natural parent who has not been deemed unfit is entitled to
the presumption that he or she is acting in the child’s best interest, even after
consenting to a guardianship. Therefore, when a natural parent, who has not been
deemed unfit and who has consented to a guardianship, files a petition to terminate
that guardianship, that parent must put forth evidence that the guardianship is no
longer necessary. Once the court is satisfied that the conditions necessitating the

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guardianship have been removed, the guardians shoulder the burden of rebutting
the presumption that termination is in the child’s best interest.

We remanded the case for the circuit court “to address Tamera’s petition in light of

our holding.” Contrary to the position of the dissent, our holding in In Re S.H. I was not

an invitation for the circuit court to reopen the proceedings and conduct additional

hearings over an extended period of time. In Standridge v. Standridge, 304 Ark. 364, 368,

803 S.W.2d 496, 498(1991), we explained:

Whatever was before this court, and is disposed of, is considered as finally settled.
The inferior court is bound by the judgment or decree as the law of the case, and must
carry it into execution according to the mandate. The inferior court cannot vary it for any
other purpose than execution. It can give no other or further relief as to any matter
decided by the Supreme Court, even where there is error apparent; or in any manner
intermeddle with it further than to execute the mandate, and settle such matters as have
been remanded, not adjudicated, by the Supreme Court. We have consistently followed
that rule. See Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979); Milsap v. Holland,
186 Ark. 895, 56 S.W.2d 578 (1933).

Id., citing Fortenberry v. Frazier, 5 Ark. 200 (1843).

In this case, the circuit court should have reconsidered its order and applied the

correct constitutional standard to the case before it as directed in In Re S.H. I. However,

upon remand, the parties returned to circuit court where the circuit court held three

additional hearings: October 23, 2012, June 28, 2013, August 2, 2013.

On September 23, 2013, the circuit court ultimately denied Tamera’s petition to

terminate the guardianship. On October 3, 2013, Tamera filed a motion for amendment

of findings, for reconsideration, and/or for new trial. On November 1, 2013, the circuit

court held another hearing and on November 4, 2013 denied the motion. From those

orders, Tamera appeals.

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We review probate proceedings de novo, but we will not reverse a finding of fact

by the circuit court unless it is clearly erroneous. See Thomas v. Avant, 370 Ark. 377, 260

S.W.3d 266 (2007). 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. See Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007). 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. 1

In its September 23, 2013 order, denying her petition, the circuit court held:

After comparing the circumstances which existed at time the guardianship was
granted and the circumstances which exist now, the court concludes that there has
not been any material change. While the details may have changed in some
respects, the conditions still indicate an unstable situation. The court therefore finds
that Tamera did not put forth evidence sufficient to satisfy the court that the
conditions necessitating the guardianship have been removed. Even if Tamera had
put forth satisfactory evidence that the conditions necessitating the guardianship had
been removed, and considering the parental preference in Tamera’s favor, the court
finds based on the evidence that the Herringtons have rebutted the presumption
that termination of the guardianship is in S. H.’s best interest.

With regard to guardianship, we have held that “Arkansas courts have long referred

to guardianship cases as special proceedings. See, e.g., Nelson v. Cowling, 89 Ark. 334, 116

S.W. 890 (1909). Further, special proceedings are governed by statute. First Security Bank

v. Estate of Leonard, 369 Ark. 213, 253 S.W.3d 434 (2007); In re Adoption of Baby Boy

1
However, contrary to the dissent’s position, as an appellate court, we must review
the probate court’s findings. The probate court’s findings are not insulated from review,
but rather are afforded due deference upon review. Without elaboration, the dissent only
states that it “simply cannot say that the circuit court clearly erred in its decision, based on
my review of the record and the circuit court’s findings under our standard of review.”

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Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997). Hetman v. Schwade, 2009 Ark. 302, at 9,

317 S.W.3d 559, 563.” Swenson v. Kane, 2014 Ark. 444, 447 S.W.3d 118. Guardianships

are creatures of statute and exist only as defined by the statutes of the Probate Code.

Likewise, guardianships are terminated as provided by statute. Id. The statute at issue,

Ark. Code Ann. § 28-65-401, addresses the termination of guardianship and provides in

pertinent part:

(b) A guardianship may be terminated by court order after such notice as the court
may require:

....

(3) If, for any other reason, the guardianship is no longer necessary or for the
best interest of the ward.

In interpreting this statute, we have held that fit parents do not relinquish their

fundamental liberty interest in raising their children by consenting to a guardianship and

are entitled to the Troxel v. Granville, 530 U. S. 57 (2000) presumption in a proceeding to

terminate that guardianship:

A natural parent who has not been deemed unfit is entitled to the presumption that
he or she is acting in the child’s best interest, even after consenting to a
guardianship. Therefore, when a natural parent, who has not been deemed unfit
and who has consented to a guardianship, files a petition to terminate that
guardianship, that parent must put forth evidence that the guardianship is no longer
necessary. Once the court is satisfied that the conditions necessitating the
guardianship have been removed, the guardians shoulder the burden of rebutting
the presumption that termination is in the child’s best interest.

In Re S.H. I, 409 S.W.3d at 316-17.

Further, in our discussion regarding Troxell and a parent’s rights to establish and

terminate a guardianship, we cited with approval the Colorado Supreme Court’s analysis:

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An important characteristic of a guardianship by parental consent is that parents
have exercised their fundamental right to place their child in the custody of another
for purposes of furthering the child’s best interests. Failure to accord fit parents a
presumption in favor of their decision to terminate a guardianship established by
parental consent would penalize their initial decision to establish the guardianship
and deter parents from invoking the guardianship laws as a means to care for the
child while they address significant problems that could impair the parent-child
relationship or the child’s development. In re D.I.S., 249 P.3d at 783 (internal
citations omitted); see also In re Guardianship of D.J., 682 N.W.2d at 246; In re
Guardianship of Reena D., 35 A.3d at 513–14.

In Devine v. Martens, we expressed similar public-policy concerns. 371 Ark. 60, 74,
263 S.W.3d 515, 526 (2007) (“Just as the Arkansas Juvenile Code recognizes the
efforts of parents in dependency-neglect actions to improve their homes and
parenting skills, we should encourage and recognize such improvements by parents
in guardianship actions.”).

In Re S.H. I, 409 S.W.3d at 315-16.

Accordingly, in In Re S.H. I, we ultimately set out the standard for the termination

of a guardianship: (1) The parent must put forth evidence that the guardianship is no

longer necessary and (2) once the court is satisfied that the conditions necessitating the

guardianship have been removed, the guardians shoulder the burden of rebutting the

presumption that termination is in the child’s best interest.

In reviewing whether this standard for termination of guardianship was met here,

we must determine, based on our standard of review, whether Tamera put forth evidence

that the guardianship was no longer necessary. The record clearly demonstrates that she

did. Tamera put forth evidence that the guardianship was no longer necessary, by

revoking her consent to the guardianship. This withdrawal of consent to the guardianship

sufficiently demonstrated that the guardianship was no longer necessary. A “fit parent,”

like Tamera, is presumed to act in S.H.’s best interest. Thus, Tamera is presumed to have

acted in S.H.’s best interest when she consented to the guardianship, and she is, likewise,
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presumed to have acted in S.H.’s best interest when she revoked her consent to the

guardianship.

In the first hearing following our remand on Tamera’s petition to terminate the

guardianship, in ruling on the Herrington’s motion to dismiss Tamera’s petition the circuit

court stated:

The charge of the Supreme Court in this case on remand was that the petitioner
must go forward with evidence that the guardianship is no longer necessary. I
believe that the petitioner, Ms. Troesken, . . . has gone forward with evidence that
the guardianship is no longer necessary. Without saying how strong that evidence
is, I think the evidence has been submitted, so the motion will be denied.

Yet, in its written opinion, the circuit court held that Tamera had not put forth

evidence that the guardianship was no longer necessary. In this ruling, the circuit court

clearly erred.

Further, in finding that it was in not in S.H.’s best interest that the guardianship be

terminated, the circuit court erred yet again. The Herringtons bore the burden of

rebutting the presumption that termination was in S.H.’s best interest after Tamera had

revoked her consent. However, the record demonstrates that although the circuit court’s

order recited that the Herrington’s had rebutted the presumption that termination was in

S.H.’s best interest; in truth, it is clear that the burden was placed on Tamera, the parent,

to further show that termination was warranted.

Again, the statutory standard in Ark. Code Ann. § 28-65-401 to be applied in

termination of guardianship cases provides for termination of a guardianship upon either of

two grounds, (1) that the guardianship is no longer necessary, or (2) for the best interest of

the ward.

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In In Re S.H. I, we explained:

The Arkansas General Assembly made clear that, in the case of original
guardianship actions with respect to children, natural parents enjoy a preference in
the law. Ark. Code Ann. § 28-65-204(a) (Repl. 2012). Once established, a
guardianship may be terminated by court order after notice as required by the court
where the guardianship is no longer necessary or for the best interest of the ward.
Ark. Code Ann. § 28-65-401(b)(3); see also Graham v. Matheny, 2009 Ark. 481, 346
S.W.3d 273 (clarifying the standard for courts in guardianship-termination
proceedings).

In Re S.H. I, 409 S.W.3d at 312–13.

In Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273 we held:

[T]hat analyzing [a] case under the change-of-circumstances standard as if the case
were a child-custody matter is the wrong analysis to be performed by the circuit
judge in [a] termination case and that the proper analysis should be done under the
standard set out in section 28-65-401(b)(3).

Id., 346 S.W.3d at 281.

However, although clarifying the standard for termination of guardianship cases,

the analysis in Matheny is being wrongly interpreted by the majority to indicate that the

best interest of the ward is properly a part of the court’s consideration in determining

whether a guardianship continues to be necessary. That is not the case. Instead, as was

correctly noted in Matheny, the two bases upon which a guardianship may be terminated

are in the disjunctive:

[I]t is clear to this court that the standard to be applied in termination-of-
guardianship cases has been fixed by the General Assembly in section 28-65-
401(b)(3), and that standard is (1) whether the guardianship is no longer necessary,
or (2) whether termination is in the best interest of the ward. The statutory
standard is crafted in the disjunctive and is applicable to terminations involving
wards who are adults and wards who are children.

Id., 346 S.W.3d at 281.

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Thus, a guardianship may be terminated when it is no longer necessary.

Additionally, a guardianship may be terminated when termination is in the ward’s best

interest.

The testimony at the hearings on remand all demonstrate that Tamera and the

guardians have an acrimonious relationship at best. At the time of the hearing, Tamera had

had another child with a man to whom she was not married and was presently involved in

a approximately nine-month long relationship with a different man. Tamera is

unemployed, attends school on-line, stays at home with her infant daughter, resides with

her mother and is financially supported by various family members. However, there has

never been a finding that Tamera is an unfit parent and the record in this case cannot

support such a finding. Thus, as a fit parent, Tamera is presumed to have acted in S.H.’s

best interest in revoking her consent to the guardianship. Therefore, Tamera demonstrated

that the guardianship is no longer necessary and should be terminated.

At that point, pursuant to our holding in In Re S.H. I., in order to rebut the

presumption, the Herrington’s were required to shoulder the burden of proving that

termination was not in S.H.’s best interest by showing that Tamera was an unfit parent

and unsuitable to have custody of S.H. They failed to do so. Therefore, the circuit court

erred in denying Tamera’s petition to terminate the guardianship.

Finally, I must note the disturbing tendency in our precedents to conflate

guardianships with custody cases. Guardianships are creatures of statute that are created by

the Probate Code. They are governed wholly by statute and established by order of the

probate court. Probate courts are courts of law, not equity. This inexcusable mingling of

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equitable principles is apparent in this court’s opinion in Fletcher v. Scorza, 2010 Ark. 64,

359 S.W.3d 413 (2010), where we said:

It is within the circuit court’s discretion to make a determination as to whether a
parent is qualified and suitable. See Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d
485 (2005). Moreover, 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. See Blunt [v. Cartwnght, 342 Ark. 62, 30 S W 3d 737 (2000)],. . . .
Any inclination to appoint a parent or relative must be subservient to the principle that the
child’s interest is of paramount consideration. See Blunt, supra.

Id., 359 S.W.3d at 421(emphasis added).

Of course, the case of Blunt, predated the Supreme Court’s holding in Troxell, and

Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005) failed to even mention Troxell

in holding that the inclination to appoint a parent or relative must be subservient to the

child’s best interest and that the child’s best interest is of paramount consideration, both in

custody and in guardianship situations. 2 However, Troxell held that:

. . . the Fourteenth Amendment’s Due Process Clause has a substantive component that
“provides heightened protection against government interference with certain fundamental
rights and liberty interests,” Washington v. Glucksberg, 521 U. S. 702, 720, including
parents’ fundamental right to make decisions concerning the care, custody, and control of their

2
This language, referring to “the child’s best interest” seems to be at the root of the
confusion surrounding the proper standard to be applied in guardianship cases. First, it is
incorrect, because the statute references only “the ward’s best interest.” Second, it appears
to be easily confused with the “best interest of the child” analysis used in domestic
relations cases. Unfortunately, both Graham and In Re S.H. I use the term “best interest
of the child.” However, a careful reading of both of these cases shows that the intended
meaning is that a guardianship is necessary where the parent is unfit, or where some other
harm to the ward would result if the guardianship were terminated. Certainly, any
particular guardianship may be terminated if termination is in the ward’s best interest, even
if guardianship is still necessary.

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children. There is a presumption that fit parents act in their children’s best interests,
Parham v. J. R., 442 U. S. 584, 602; there is normally no reason for the State to
inject itself into the private realm of the family to further question fit parents’
ability to make the best decisions regarding their children. see, e.g., Reno v. Flores,
507 U. S. 292, 304.

Id., 530 U. S. 57 at 65 (emphasis added).

Further, in Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), a grandparent

visitation case, this court held that to overcome the presumption in a parent’s favor, there

must be some other factor, such as harm to the child or custodial unfitness, that justifies

state interference. Likewise, to pass constitutional muster our guardianship statutes must

recognize a parent’s fundamental right to make decisions concerning the care, custody and

control of their children and the presumption that a fit parent acts in their child’s best

interest. See id.

The Fletcher court then further compounded its error in failing to recognize a

parent’s fundamental rights, by referring to this court’s case of Freeman, and stating:

In Freeman, we rejected Freeman’s argument that “the natural-parent preference
must prevail unless it is established that the natural parent is unfit,” observing that
“[Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), relied on by Freeman,]
is a modification-of-custody case, not a guardianship case, governed by the case-
law preference, not the statutory preference found in Ark. Code Ann. § 28-65-
204(a).” Id. at 451-52, 202 S.W.3d at 488. We, therefore, take this opportunity to
clarify that the sole considerations in determining guardianship pursuant to Ark.
Code Ann. § 28-65-204(a) are whether the natural parent is qualified and suitable
and what is in the child’s best interest. To the extent that any of our prior cases suggest a
standard of fitness or unfitness in guardianship proceedings involving the statutory natural-
parent preference, we overrule them.

Fletcher, 2010 Ark. 64, 359 S.W.3d 413 (emphasis added).

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Of course, as stated previously, Blunt predates Troxell, and Freeman does not even

mention the presumption in favor of a fit parent. But, as Justice Glaze pointed out in his

dissent in Freeman:

[T]he proper analysis must commence with the presumption that Freeman was acting in his
son’s best interest, however, Freeman was not given the benefit of that presumption:
Our court, therefore, cannot be assured that, if it had utilized the correct legal
principles and analysis the trial court would have ruled the way it did. . . . It
appears to me that Freeman’s argument that the trial court erred as a matter of law
is correct under the tenets established in Troxell and Linder. In my view, confusion
exists in this case and we are the only ones who can alleviate that confusion - better
now than later.

Freeman v. Rushton, 360 Ark. at 452, 202 S.W.3d at 489, Glaze J., dissenting (emphasis

added).

Justice Glaze was correct, and the confusion has only gotten worse as evidenced by

this court’s holding in Fletcher. However, Blunt, Freeman, and Fletcher all predate our

holding in In Re S.H. I where we first recognized that Ark. Code Ann. § 28-65-401 is

unconstitutional as applied to a fit parent. Earlier decisions are implicitly overruled by

subsequent decisions to the contrary. Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574

(1979).

While the dissent may, “shudder to think” that this court, “now having the vote”

to basically overrule “without so stating” our holding in In Re S.H. I, this statement is as

incorrect as it is inflammatory and hyperbolic. If this court were to conclude that the

holding in In Re S.H. I misapplied the law, it is our duty to so hold. This is particularly

true where, as here, we are dealing with a statutory infringement on a fundamental right

that is subject to review under a strict scrutiny standard. See Linder. Therefore, the dissent

should not “shudder to think” that this court will preform its duty and overrule any prior
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precedent that is inconsistent with the constitutional guarantee of due process. However,

despite the dissent’s baseless characterization, the majority does no such thing. While I

reach my conclusions from a different analysis than that employed by the majority, I do

agree with their conclusion that the circuit court in this case impermissibly required

Tamera to prove a change of circumstances in order to justify terminating the

guardianship in direct violation of our holding in In Re S.H. I. For that reason alone, this

case must be reversed.

As for the dissent’s assertion that the proper course to take when the circuit court

has committed error, in a case such as this, is to reverse and remand for further proceedings, I

am, quite frankly, appalled. This is a probate case, a case at law, and we do not defer to

the circuit court on matters of law; but, instead, review the case de novo on the record. 3

In this case, Tamera, a fit parent, has been struggling through five years of legal

proceedings to regain custody of her child. That the dissent could possibly believe that

further proceedings would benefit anyone, especially S.H., defies both logic and common

sense. In this regard, I again quote Justice Glaze’s wisdom from his dissent in Freeman,

3
In this regard, both the majority and the dissent err in citing to Ingle v. Ark. Dep’t
of Human Servs., 2014 Ark. 53, 431 S.W.3d 303. Ingle was a juvenile case, sounding in
equity, in which the circuit court maintained continuing jurisdiction. Thus, in Ingle, a
new petition could be filed in the case encompassing circumstances that had arisen
following the entry of the previous order, which we reversed. Yet, even in equity, the
moving party must show a material change in circumstances has transpired since the time
of the previous order. See generally, Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).
In In re S.H. I, a probate case, there was no continuing jurisdiction. The order at issue in
that case was the order denying Tamera’s initial petition to terminate the guardianship.
We reversed that order and remanded the case for the circuit court to reconsider its ruling
and apply the correct constitutional standard.

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“confusion exists in this case and we are the only ones who can alleviate that confusion -

better now than later.”

HART, J., joins.

PAUL E. DANIELSON, Justice, dissenting. Because I cannot abide by the

majority’s substitution of its judgment for that of the circuit court and because I do not

agree that the circuit court clearly erred in denying Tamera’s petition to terminate the

guardianship, I respectfully dissent.

Our standard of review in these cases is longstanding and quite clear: we review

probate proceedings de novo, but we will not reverse a finding of fact by the circuit court

unless it is clearly erroneous. See Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273. 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. See 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. See id. The

majority’s opinion, however, represents quite a sea change in the manner by which this

court will now review a case such as this one. Instead of adhering to our standard of

review, the majority opinion wholly ignores the circuit court’s decision in this case and

replaces it with its own—annihilating our role as an appellate court to review. By its doing

so, I am left to wonder if there is any longer a need to allow the circuit court to even

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consider these matters first. 1 At the very least, I am troubled by the precedent being set by

the majority’s actions.

In addition, I believe that the majority opinion has removed any discretion by the

circuit court in deciding a petition to terminate guardianship. Ark. Code Ann. § 28-65-

401(b)(3) (Repl. 2012) (providing 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

no longer necessary or for the best interest of the ward”). While stating its recognition of

this court’s precedent in the first appeal in this matter, the majority basically overrules that

decision, without so stating, and holds that merely “informing the court that the

conditions necessitating the guardianship no longer exist” is all that is required. That, in

my opinion, flies in the face of our earlier decision, wherein we specifically held that

“when a natural parent, who has not been deemed unfit and who has consented to a

guardianship, files a petition to terminate that guardianship, that parent must put forth

evidence that the guardianship is no longer necessary.” In re Guardianship of S.H., 2012 Ark.

245, at 15, 409 S.W.3d 307, 316 (S.H. (I)) (emphasis added).

Here, the circuit court held Tamera to the showing required in S.H. (I) and

concluded in its letter opinion that the “conditions still indicate an unstable situation.” 2

1
In its attempt to justify the substitution of its judgment for that of the circuit court,
the majority states that it can do so because the circuit court applied an incorrect standard
and because the matter has been pending for several years. Even if the circuit court
applied an incorrect standard, which I in no way concede that it did, the proper remedy
would be a reversal of the circuit court’s decision and a remand for the circuit court to apply
the correct standard. See Graham, 2009 Ark. 481, 346 S.W.3d 273. More importantly, it
is not, and has never been, this court’s function, no matter the circumstances, to ever
“consider the evidence and apply the appropriate standard,” as asserted by the majority.
To do so under the guise of de novo review is simply wrong.

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Despite the fact that the circuit court did precisely as this court instructed in S.H. (I), the

majority nonetheless reverses the circuit court’s decision. I shudder to think that the

majority’s reversal is nothing more than the result of the dissent in S.H. (I) now having a

majority to reverse our prior holding. But whatever the majority’s rationale, I simply

cannot say that the circuit court clearly erred in its decision, based on my review of the

record and the circuit court’s findings under our standard of review. For this reason, I

would affirm the circuit court’s denial of Tamera’s petition.

While not necessary to its decision, the circuit court did go further and concluded

that even if Tamera had put forth evidence that the conditions necessitating the

guardianship had been removed, the Herringtons had rebutted the presumption that

termination of the guardianship was in S.H.’s best interest. The majority concludes that

this decision was erroneous as well because the circuit court “failed to credit Tamera’s

fundamental right to care for her daughter and gave no weight to her rights as the natural

parent.” In S.H. (I), we held that a parent, who has not been found unfit and who

consented to a guardianship, is entitled to the presumption that she or he is acting in the

child’s best interest in a proceeding to terminate that guardianship. See S.H. (I), 2012 Ark.

245, 409 S.W.3d 307.

The majority’s observation, however, indicates a flawed understanding of our

further holding in S.H. (I)—that a natural parent’s fundamental right to the care, custody,

and control of her or his child is recognized and afforded weight by virtue of the

2
The circuit court incorporated its letter opinion into its order denying Tamera’s
petition.

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rebuttable presumption given that parent that termination of the guardianship is in the

child’s best interest. See id. The fact that a presumption is afforded to that parent is itself

the recognition and protection of the parent’s fundamental right to parent. See Black’s

Law Dictionary 1378 (10th ed. 2014) (defining “rebuttable presumption” as “[a]n inference

drawn from certain facts that establish a prima facie case, which may be overcome by the

introduction of contrary evidence”). When the circuit court in the instant case gave

Tamera the benefit of the presumption and required the Herringtons to rebut it, the

circuit court gave the requisite weight to Tamera’s fundamental right and protected it, just

as we held in S.H. (I).

On a final note, I would be remiss if I did not point out the danger in the

majority’s directive to the circuit court to return S.H. to Tamera’s custody, when it does

not have the benefit of knowing the events and circumstances since the filing of this

appeal. See Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 53, 431 S.W.3d 303 (Danielson,

J., concurring in part and dissenting in part). It was a dangerous precedent in Ingle, from

which I vigorously dissented, and I remain steadfast in my position, most certainly after

my very fears were confirmed in that case. See Ingle v. Ark. Dep’t of Human Servs., 2014

Ark. 471, 449 S.W.3d 283. As I have already noted, even if the circuit court had erred,

the proper remedy would be a reversal of the circuit court’s decision and a remand to the

circuit court for further proceedings. See Graham, 2009 Ark. 481, 346 S.W.3d 273.

Because the majority’s opinion and its actions therein far exceed our role as a court

of appellate review, and because, after having exercised the appropriate review in such

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cases, I would affirm the circuit court’s order denying Tamera’s petition to terminate the

guardianship, I respectfully dissent.

HANNAH, C.J., joins.

Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for

appellant.

Boyd & Buie, by: Christina Boyd and Rufus T. Buie, III, for appellees.

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