Fletcher v. Scorza

WILLS, J.,

dissenting.

Because I am left with a definite and firm conviction that a mistake has been made, I must respectfully dissent.

My disagreement with the majority opinion stems mainly from its conclusion that the trial court’s findings were not clearly erroneous. I also disagree, however, with two recitations of law relied upon by the majority: 1) that the statutory preference in favor of apparent is but “one factor” to consider in guardianship cases; and 2) that “any inclination to appoint a parent ... [as guardian] must be subservient to the principle that the child’s best interest is of paramount consideration.” For each of these propositions, the majority cites Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000). In Blunt, the natural mother of the child in question was killed and the putative father was appointed as temporary guardian. The maternal grandparents petitioned to be permanent guardians, and their request was granted by the trial court. The father appealed. This court affirmed that conclusion, stating as follows:

Where the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. Bennett v. McGough, 281 Ark. 414, 664 S.W.2d 476 (1984); Trammell v. Isom, 25 Ark.App. 76, 753 S.W.2d 281 (1988); Marsh v. Hoff, 15 Ark.App. 272, 692 S.W.2d 270 (1985); Monroe v. Dallas, 6 Ark.App. 10, 636 S.W.2d 881 (1982). Preferential status may be given to the natural parents of the child under Ark.Code Ann. Sec. 28-65-204 (Supp.1999). This preference, however, is but one factor that the probate court must consider in determining who will be the most suitable guardian for the child. See Marsh, 15 Ark.App. 272, 692 S.W.2d 270. Indeed, any inclination to appoint a parent or relative must be subservient to the principle that the child’s best interest is of paramount consideration. See Bennett, 281 Ark. 414, 664 S.W.2d 476.

Blunt, 342 Ark. at 669, 30 S.W.3d at 741.

In the last two sentences above, the Blunt case relies on Marsh v. Hoff, 15 Ark.App. 272, 692 S.W.2d 270 (1985), and Bennett v. McGough, 281 Ark. 414, 664 S.W.2d 476 (1984), the former for the proposition that the statutory preference is “one factor” to consider, and the latter for the proposition that any inclination to appoint a parent must be subservient to the child’s best interests. In my view, the Marsh case is flawed and the Bennett case is [ ^inapposite, and thus, Blunt’s reliance upon them wrong, as is our reliance on Blunt.

In Marsh v. Hoff, supra, the natural mother of a minor child died, and the child’s half brother and his wife petitioned for guardianship. They were appointed temporary guardians, but the trial judge later denied them permanent guardianship and placed the child with the natural father. The court of appeals reversed this finding, concluding that the trial court abused its discretion in light of the testimony concerning the filthy living conditions at the natural father’s house and the absence of hot water or sufficient food for the child. In reaching its conclusion, the court of appeals stated that “[t]he parental preference provided for in Ark. Stat. Ann. section 57-608 [the precursor to Ark. Code Ann. § 28-65-204] is only one of the factors to be considered by the court in determining who would be the most suitable guardian.” The court of appeals cited Monroe v. Dallas, 6 Ark.App. 10, 636 S.W.2d 881 (1982), for this proposition. This statement, as well as the reliance on Monroe v. Dallas for it, is erroneous.

Monroe, supra, did not involve the statutory preference in favor of a natural parent. In Monroe, the father of the child in question shot and killed the child’s mother. The father was convicted of manslaughter and was serving a twenty-year prison sentence. The maternal grandfather filed a petition to be the child’s guardian. The father objected and stated his preference for his brother to be the child’s guardian. The trial court appointed the grandfather, and the brother and the father appealed, arguing that the trial court erred in appointing the grandfather rather than the brother, whom the father preferred. The court of appeals [17affirmed. It first set out the pertinent portions of the applicable statute (now Arkansas Code Annotated section 28-65-204), which provided that

[t]he parents of an unmarried minor, or either of them, if qualified and in the opinion of the court suitable, shall be preferred over all others for appointment as guardian of the person. Subject to this rule, the court shall appoint as guardian of an incompetent the one most suitable to serve, having due regard to: (a) any request contained in a will or other unitten instrument executed by the parent for the appointment of a person as guardian of his minor child; ... (d) the relationship by blood or marriage to the person for whom the guardianship is sought.

Monroe, 6 Ark.App. at 11, 636 S.W.2d at 883 (emphasis added).

In Monroe, the court of appeals stated that “A reading of this statute indicates that parental preference is only one of the many factors to be considered in determining the one most suitable to serve as guardian.” Id. at 11-12, 636 S.W.2d at 883 (emphasis added). The court of appeals also stated that “[t]he Supreme Court has stated that the statute does not make an ironclad order of priority; instead, it leaves to the probate court’s sound discretion the appointment of a guardian who would forward the best interests of the ward. McCartney v. Merchants and Planters Bank, 227 Ark. 80, 296 S.W.2d 407 (1956).” Id. at 12, 636 S.W.2d at 883.

It is obvious that the Court of Appeals in Monroe was not discussing the preference for appointing a natural parent as guardian that is found at Arkansas Code Annotated section 28-65-204(a). No natural parent was seeking guardianship in Monroe. The court was instead addressing the natural parent’s preference as to the choice of the child’s guardian under what is now section 28-65-204(b)(l) and (b)(4), when neither natural parent was available to be the guardian. In that circumstance, the preference of the parent as to who should be |1sappointed is “but one factor” to consider.

The court of appeals in Marsh v. Hoff, supra, erroneously cited Monroe and applied it to a case in which the natural-parent preference under section 28-65-204(a) was at issue. We repeated the error by relying on Marsh in Blunt v. Cartwright, supra, and the majority repeats the error here by now relying on Blunt3

In my view, the statutory preference for the natural parent to be appointed as guardian is more than “one factor” to consider. The statute dictates that “the parents of an unmarried minor, or either of them, if qualified and, in the opinion of the court, suitable, shall be preferred over all others for appointment as guardian of the person.” (emphasis added). The statute does not set out this preference as “one factor” to be considered. It is more than that, although certainly it is not a mandate to appoint the natural parent, if suitable. See Freeman v. Rushton, supra.

Similarly, the Blunt court’s reliance on Bennett v. McGough, supra, for the proposition that “any inclination to appoint a parent or relative must be subservient to the principle that the child’s best interest is of paramount consideration” is misplaced. Again, as with Monroe, \ Bennett did not involve the natural-parent preference of section 28-65-204(a). In Bennett, both parents were killed in an accident. Friends of the family were appointed as guardians of the minor children. The maternal grandparents objected and argued that they should be appointed. The trial court appointed the friends of the family, concluding that neither party had a statutory preference. This court affirmed, concluding that the applicable statute (now Ark.Code Ann. § 28-65-204), “is couched in such terms as to allow the court to exercise its sound discretion and only grants a preference to the parents of a minor. Any inclination to appoint a relative must necessarily become subservient to the principle that the child’s best interest is of paramount consideration.” Bennett, 281 Ark. at 416, 664 S.W.2d at 477-78 (emphasis added). One justice dissented, stating that the effect of the court’s ruling was to “ignore all of the statute except the first sentence,” meaning the natural-parent preference of section 28-65-204(a). Id. at 418, 664 S.W.2d at 478-79 (Purtle, J., dissenting).

In Blunt, supra, the language used in Bennett regarding the appointment of relatives was extended to include the appointment of natural parents: “any inclination to appoint a parent or relative must be subservient [to the] child’s best interest....” Blunt, 342 Ark. at 669, 30 S.W.3d at 741 (emphasis added). In my view, this is an unwarranted extension of the Bennett holding. Of course, the best interests of the child should be foremost in the mind of the circuit court in guardianship cases. The General Assembly has made a policy determination, however, that the natural parent, if suitable, should be preferred. Although this preference is not an inexorable command, in my view it deserves more consideration than accorded by |i>nour faulty reliance on the cases cited above.

The circuit court in the case at bar expressly relied upon the proposition that the natural-parent preference is “subservient” to the bests interest of the child, as well as the conclusion that the natural-parent preference is “but one factor,” in reaching its conclusions. This brings me to my primary disagreement with the majority opinion: its upholding of the trial court’s finding that the mother in this case, Fletcher, was unsuitable. The circuit court’s primary rationale for this conclusion appears to be that Ms. Fletcher “made a conscious decision to delegate her parental responsibilities, duties, and obligations to Kevin Seorza.” The circuit court also found that only when Mr. Seorza stopped paying child support for the other children did Ms. Fletcher seek to regain custody of the minor, J.F. The court also concluded that Ms. Fletcher had not demonstrated that she contributed significantly to the financial support of J.F. during his time in Mr. Scorza’s custody. These findings led the court to conclude that “a fit parent would not delegate her parental responsibility to someone only so long as it benefitted her financially.” The court also noted that “separating J.F. from this family environment and his two half siblings is not in [his] best interests.”

I agree with the court of appeals’ conclusions reversing the circuit court:

Given the circumstances prevailing in New Orleans and appellant’s lack of housing, appellant exercised wise judgment by permitting J.F. to remain with appellee. It would appear that the trial court questioned appellant’s judgment for allowing J.F. to stay with appellee past the time when the court surmised that the situation in New Orleans had stabilized. However, during this time, appellant was making efforts to improve the quality of her life, and thus J.F.’s, by obtaining her degree in nursing. While the parties’ agreement placed J.F. in appellee’s temporary care, the evidence shows that appellant was not wholly derelict in her duties as a parent. Although 121 appellant paid no support per se, it is undisputed that she sent gifts and provided money, clothing, and other necessities during this period of separation. Appellant also maintained consistent contact with J.F. by phone and visited with him on a number of occasions. Moreover, the trial court’s finding that appellant’s resumption of custody coincided with the cessation of child support is not justified by the record. The evidence shows that appellant stopped receiving appellee’s child-support payments in August 2007, and not in December 2007 when she reclaimed the child. Instead, appellant’s resumption of custody coincided with her graduation from nursing school.

Fletcher v. Scorza, 2009 Ark.App. 372, at 8-9, 2009 WL 1232100.

In April of 2006, during or shortly after the time during which Ms. Fletcher was living on a cruise liner with other law enforcement and emergency personnel after the hurricane, she had to make a decision whether to stay in New Orleans or leave. As a lifelong resident of New Orleans, having just been accepted into nursing school, and with no other home to go to, she elected to stay. With the New Orleans school system still in disarray, she left her children, including J.F., in the care of the only father they had ever known, Mr. Scorza, until she completed nursing school and the situation in New Orleans stabilized. For this, and the reasons set out above, the trial court found her unfit and unsuitable.

We recently reversed a trial court for a similar finding, in a case without anywhere near the exigent circumstances in this case — that is, Hurricane Katrina — even though there were multiple issues as to the mother’s home environment and judgment. Devine v. Martens, 371 Ark. 60, 263 S.W.3d 515 (2007) (reversing circuit court’s finding of unfitness and abandonment where mother left child with grandparents for various periods of time, including for seven months to relocate to New York). We stated that it was clear the trial |22COurt improperly based its judgment on its own morals and viewpoint, id. at 73 n. 5, 263 S.W.3d at 525 n. 5, and concluded that, “[fjrankly, it is not in a child’s best interest to take custody from a natural parent who has rectified all issues related to his or her fitness and grant custody to a third party.” Id. at 74, 263 S.W.3d at 526.

We should rule the same way in this case, particularly where Ms. Fletcher, in my view, has no issues to rectify. I would further add that it is not clear to me from the record that appointment of Ms. Fletcher as guardian would have the effect of “separating J.F. from ... his two half siblings,” as the circuit court stated. The record reflects that Ms. Fletcher has legal custody of the half siblings as well as J.F.

In conclusion, I simply cannot fathom how the actions of this mother render her “unsuitable,” and thus am left with a definite and firm conviction that a mistake has been made. Hurricane Katrina tragically, but temporarily, separated this mother and son. This court should not compound the tragedy by making the separation permanent. Like the court of appeals, I would reverse the circuit court’s conclusions as clearly erroneous. I therefore respectfully dissent.

CORBIN and SHEFFIELD, JJ., join this dissent.

. We also recited this "one factor” language of Blunt in Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005), wherein we concluded that the statutory preference was just that, a preference, and "[that] preference and the fitness of that parent are not the absolute determinants in custody modification matters. ...” We repeated this same "one factor” language in Devine v. Martens, 371 Ark. 60, 263 S.W.3d 515 (2007), but also cited case law to the effect that the law prefers a parent over a grandparent or other third person unless the parent is proved to be incompetent or unfit. Id. at 71, 263 S.W.3d at 523. See also Smith v. Thomas, 373 Ark. 427, 284 S.W.3d 476 (2008) (repeating the "one factor” language).