Troeskyn v. Herrington, 2012 Ark. 245

S.H. was born July 1, 2005 to Scott Herrington and Tamera Troeskyn; guardians were Herringtons since 2008.
August 2008 ex parte order and October 2008 temporary order placed guardianship with Herringtons citing unstable living conditions.
November 2008 permanent guardianship granted to Herringtons; Tamera consented to guardianship; later moved to Minnesota.
June 25, 2010, Tamera petitioned to terminate guardianship, arguing it was no longer necessary and that she is fit.
Herringtons sought psychological evaluations; circuit court granted Rule 35 evaluations over objection; hearings held April 8, 2011.
July 13, 2011, circuit court denied termination; found guardianship still necessary; expanded visitation; Tamera appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutionality of § 28-65-401 as applied	Troetskyn argues the statute infringes a fundamental right to parent.	Herringtons contend only a rational basis applies due to guardianship consent.	Constitutional right violated; Troxel presumption applies; remand for reconsideration
Burden of proof in termination proceeding	Troetskyn maintains presumption favors parent; burden shifts to guardians to show continuing need.	Herringtons argue burden on parent is appropriate after consent to guardianship.	Parent retains presumption; guardians bear burden to show continued need on remand
Rule 35 psychological evaluation standard	No controversy or good cause shown; evaluation not authorized.	Evaluation could aid court in determining best interest.	Order was abuse of discretion; remand to apply Rule 35 properly
Admission of Doan and Shapse reports	Shapse report hearsay; Doan report hearsay; prejudicial error.	Some hearsay evidence permissible; Doan relied upon orally; not reversible.	Shapse report not reviewable for error; Doan report harmless error; partial affirmation

Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parental liberty interest; special weight to parent's decisions)
Linder v. Linder, 348 Ark. 322 (Ark. 2002) (recognizes parental fundamental liberty interest in care and custody)
Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (fundamental liberty interest in care does not evaporate with temporary custody)
Graham v. Matheny, 2009 Ark. 481 (Ark. 2009) (preserves special weight for natural parents in guardianship context)
In re D.I.S., 249 P.3d 775 (Colo. 2011) (guardian consent preserves parental presumption; special weight for parent)
In re Guardianship of Reena D., 35 A.3d 509 (N.H. 2011) (protects parental presumptions in guardianship termination)