Sherland v. Sherland
2015 Ark. App. 342
Ark. Ct. App.2015Background
- Grandmother Terri petitioned for emergency ex parte guardianship of granddaughter N.S. after Charis’s live-in boyfriend, Brandon Brewer, was accused of sexually abusing N.S.; temporary guardianship was granted in June 2013 and continued after hearings.
- Allegations included physical and sexual abuse by Brewer; criminal charges were pending and child counselors reported fear, nightmares, and behaviors consistent with trauma.
- Charis disbelieved her daughter’s abuse allegations, remained in an ongoing intimate relationship with Brewer (and had a baby with him), and allegedly discouraged or instructed N.S. to deny the abuse.
- Counselors testified that N.S. was fearful of returning to the home and that sessions had been compromised; one counselor would not recommend returning N.S. to the environment she associated with the abuse.
- Trial court found guardianship desirable, treated the child’s best interest as paramount, concluded Charis was not a suitable guardian, and appointed Terri as guardian; Charis appealed.
Issues
| Issue | Charis’s Argument | Terri’s Argument | Held |
|---|---|---|---|
| Whether Ark. Code § 28-65-204(a) and its application infringe a parent’s fundamental right (Troxel presumption) | Statute/interpretation fails to apply Troxel presumption that a fit parent acts in child’s best interest; taking child without finding unfitness violates due process | Guardianship statute requires court to consider suitability and child’s best interest; Troxel presumption does not control contested guardianship under Arkansas precedent | Court declined to reach constitutional challenge (no AG notice); under Fletcher, natural-parent preference is subordinate to child’s best interest, so no error in applying statute |
| Whether there was sufficient evidence that guardianship was desirable (i.e., child at risk) | No proof Brewer actually abused N.S.; no proof Charis knowingly permitted or condoned abuse | Counselors’ testimony, child’s disclosures, history of violence by Brewer, Charis’s continued relationship with Brewer and attempts to quiet child supported concern for child’s safety | Trial court did not clearly err: evidence supported finding guardianship was desirable to protect N.S.’s best interest |
| Whether the trial court erred by not applying a presumption favoring the natural parent absent a finding of unfitness | Charis argued the court must find her unqualified or unsuitable before denying natural-parent preference | Statute grants preference only if parent is qualified and suitable; court may evaluate suitability and prioritize child’s best interest | Court held statutory preference is discretionary; trial court reasonably concluded Charis was not suitable and applied best-interest standard |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (2000) (establishes presumption that a fit parent acts in child’s best interest)
- Fletcher v. Scorza, 359 S.W.3d 413 (Ark. 2010) (in guardianship proceedings natural-parent preference is subordinate to child’s best interest)
- In re Guardianship of S.H., 409 S.W.3d 307 (Ark. 2012) (recognition of Troxel presumption in termination of consensual guardianship)
- City of Little Rock v. Cash, 644 S.W.2d 229 (Ark.) (procedural rule that AG must be given notice of constitutional challenges to statutes)
- Reagan v. City of Piggott, 805 S.W.2d 636 (Ark.) (failure to notify AG of constitutional attack is generally reversible error)
Affirmed: trial court’s appointment of Terri as guardian was upheld; child’s best interest and trial-court factfinding governed the outcome.