In the Matter of the Guardianship of S.H.
2015 Ark. 75
Ark.2015Background
- Mother Tamera Troesken consented to a permanent guardianship in 2008 placing her daughter S.H. with paternal grandparents Larry and Donna Herrington; Tamera later was forced from the Herrington home and did not have counsel at the 2008 proceeding.
- Sixteen months after the guardianship (June 2010) Tamera withdrew consent and petitioned to terminate the guardianship; no court ever found her unfit.
- Circuit court denied termination in 2011; this court reversed in In re Guardianship of S.H. (I), holding a fit parent who revoked consent must only put forward evidence the guardianship is no longer necessary, after which guardians must rebut a parental-presumption that termination is in the child's best interest.
- On remand the circuit court held three hearings (Oct 2012–Aug 2013), received testimony from Tamera, teachers, a social worker, and the attorney ad litem; the court issued a written order finding no material change and alternatively that the Herringtons rebutted the presumption.
- The Supreme Court majority held the circuit court applied the wrong legal standard (improper material-change analysis and insufficient credit to parental rights), clarified burdens and proof standards, and ordered S.H. returned to Tamera’s custody.
Issues
| Issue | Plaintiff's Argument (Tamera) | Defendant's Argument (Herringtons) | Held |
|---|---|---|---|
| Burden to proceed on remand ("burden going forward") | Revocation of consent and statement that conditions necessitating guardianship no longer exist suffices to meet initial burden | Court should require more than mere revocation; consider stability and ongoing circumstances | Held for Tamera: revocation/informing court meets the burden going forward for a fit parent |
| Standard of proof for guardians to retain guardianship after parent meets initial burden | Guardians must overcome parental presumption by clear and convincing evidence | Herringtons urged preponderance or deference to best-interest weighing | Held: guardians must rebut presumption by clear and convincing evidence |
| Proper legal test: material-change vs. termination-of-guardianship standard | Parent argued material-change test is inapplicable; termination statute and precedent control | Court applied a material-change-like comparison and found no material change | Held: circuit court erred by converting termination case into change-of-custody/material-change analysis |
| Remedy and deference on appeal (whether to remand or enter judgment) | Tamera urged immediate return of child given de novo review and five-year delay | Herringtons urged deference to circuit court findings and remand for further proceedings | Held: on de novo review this court concluded Herringtons failed to rebut presumption and ordered return of child to mother; remand for entry of order terminating guardianship |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (2000) (parents have fundamental liberty interest and presumption that fit parents act in their child’s best interest)
- Linder v. Linder, 348 Ark. 322 (2002) (parental-presumption principles applied in Arkansas jurisprudence)
- Graham v. Matheny, 346 S.W.3d 273 (Ark. 2009) (guardianship-termination analysis must follow §28-65-401(b)(3); cautions against change-of-custody standard)
- In re Guardianship of S.H., 409 S.W.3d 307 (Ark. 2012) (S.H. (I)) (prior opinion establishing the two-step burden-shifting framework for a fit parent who revoked consent)
- In re Guardianship of D.J., 682 N.W.2d 238 (Neb. 2004) (adopts parental-preference presumption and requires clear-and-convincing evidence from guardian to overcome it)