Graham v. Matheny

JIM HANNAH, Chief Justice,

concurring.

I concur in the majority’s decision that this case should be reversed and remanded. I agree with the majority that the standard to be applied in termination-of-guardianship cases is fixed by the General Assembly in Arkansas Code Annotated section 28-65-401(b)(3) (Repl.2004). This section provides that a guardianship may be terminated by court order for several reasons, and relevant to the present case, “Elf, 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 section provides in the disjunctive, that the guardianship may be terminated where it is no longer necessary, or where for some other reason it is no longer in the best interest of the ward that it continue. I also agree that termination of guardianships may not be analogized to change-of-custody cases and that a material-change-of-circumstances analysis is not applicable in guardianship cases.

I write separately to set out my analysis and state what I believe the circuit court should consider on remand. Darlene Matheny filed a petition in the circuit court seeking guardianship of C.M. C.M.’s mother Jena Graham was incarcerated, and his father Gary Matheny was unable to care for his son. The petition includes affidavits filed by Jena and Gary stating that a guardianship was necessary to protect the well being of C.M. Neither the petitions nor the affidavits reference termination. While Jena’s incarceration is mentioned in | )7the petition, there is no attempt to limit the guardianship to the period of incarceration. Rather, the guardianship was declared necessary to provide C.M. with “care, residency and health insurance, which the petitioners cannot obtain without legal guardianship of the minor.”

Pursuant to Arkansas Code Annotated section 28-65-105 (Repl.2004), a legal guardianship may be established by the circuit court where a guardianship is necessary to promote and protect the well being of a person.1 The circuit court must now consider whether, in light of all the circumstances argued by the parties, if for any reason, the guardianship is no longer necessary or for some other reason it is no longer in the best interest 11sof the ward that the guardianship continue.2 The circuit court must determine when the purpose of the guardianship it established is no longer necessary.3

This court erred in Crosser v. Henson, 357 Ark. 635, 643, 187 S.W.3d 848, 853 (2004), in stating that we view a petition to terminate a guardianship “as a custody modification case.”4 A guardianship is not analogous to a custody modification. Guardianships are statutory and exist as defined by statute. Declaring termination of a guardianship analogous to custody modification errantly brought custody’s material change of circumstances into the analysis. The error in Crosser led to similar errors in Freeman v. Rushton, 360 Ark. 445, 451, 202 S.W.3d 485, 488 (2005); and Smith v. Thomas, 373 Ark. 427, 433, 284 S.W.3d 476, 480 (2008). The court of appeals applies the best-interest-of-the-child standard to the termination of guard-ianships and expressly rejects material change in circumstances. Jones v. Scott, 92 Ark. App. 85, 93, 211 S.W.3d 46, 52 (2005) (“The trial court’s reliance on the incorrect standard [material change in eircurm stances] was clearly erroneous.”). However, neither this court nor the court of appeals has applied the proper standard on termination of a guardianship set out in the statute.5 Upon remand, the circuit court should be ordered to determine whether if for any reason, the guardianship is no longer necessary or for some other reason it is no longer in the best interest of C.M. that the guardianship continue.

DANIELSON, J., joins.

. I note that pursuant to Arkansas Statutes Annotated section 57-114 (1948), aguardianship established because of incarceration of a parent terminated upon discharge from imprisonment unless the parent consented that it continue. However, this statute was repealed in 1949 when the current language now codified in section 28-65-401(b)(3) (Repl.2004) was adopted. However, the current Arkansas statutory scheme establishing guardianships over minors does not base guardianships on parental consent, and if they are to be statutorily terminable upon withdrawal of consent, the General Assembly would have to modify the existing statutes to so provide.

. The parties have not raised or argued the question of whether the statutory scheme at issue violates constitutional and common law parental rights to the custody and control of children. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Payne v. Jones, 242 Ark. 686, 415 S.W.2d 57 (1967); see also In re Guardianship of Williams, 254 Kan. 814, 869 P.2d 661, 667 (1994) (stating that judicial question of what is best for welfare of child never arises unless the parents are dead or declared unfit); In re Guardianship of Jeremiah T., 976 A.2d 955, 963 (Me. 2009) (holding that guardianship must be terminated unless guardian proves parent is unfit and continuation of guardianship is in best interest of minor). Further, the law establishes a preference for the natural parent and that preference must prevail unless it is established that the natural parent is unfit. Schuh v. Roberson, 302 Ark. 305, 306, 788 S.W.2d 740, 741 (1990).

.I further note that the parties have not raised the issue or argued whether Graham, as a parent who consented to the guardianship, and who was never found unfit, may by withdrawal of consent establish that the guardianship must be terminated. See In re Guardianship of Mikrut, 175 Ariz. 544, 858 P.2d 689, 693 (Ariz.Ct.App. 1993). My concern is the effect this decision will have, for example, on those called to active military duty who are required to establish a guardianship for their minor children. They may be quite shocked upon their return to discover that they must prove, not that they are back, but that termination of the guardianship is in the best interest of their child.

. In Crosser, the court relied on Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001), which is a child-custody case rather than a guardianship case.

. If material change of circumstances were to be the standard to be applied in termination-of-guardianship cases, the General Assembly ■ would have to modify the statute to so provide.