Arkansas Supreme Court Decision Clarifies Rule Regarding Termination of Consensual Guardianship, but Some Questions Remain

In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307 (“S.H. I“) and In re Guardianship of S.H., 2015 Ark. 75 (“S.H. II“) both address the rule that applies when a parent who originally consents to a guardianship later seeks to terminate the guardianship.  In S.H. I (decided in 2012), the Arkansas Supreme Court set forth a two-step burden shifting analysis for determining whether to terminate a guardianship in such situations.  In S.H. II (which was the second appeal of the same case, decided in February 2015), the Arkansas Supreme Court clarified the burdens of proof that apply to each step in the analysis.  S.H. II was a split opinion, however, and for reasons that will be discussed in more detail below, there is some question as to which rule will apply in the future.  Therefore, this blog post analyzes the rule from both the majority opinion (which technically appears to be a plurality opinion) and the concurring opinion, along with a note regarding which rule might apply in the future.

I. Legal Background

SH II addresses situations where a parent consents to another person (typically a family member) serving as the guardian of his or her child, and then later that parent seeks to terminate that guardianship.  This can arise in a number of circumstances, such as when a parent must leave the country to serve in the military (Witham v. Beck, 2013 Ark. App. 351) or when a parent is overcoming a drug problem (Crenshaw v. Crenshaw, 2012 Ark. App. 695).

A. Abolition of the Material Change in Circumstances Standard

For many years, appellate courts in Arkansas had “equate[d] a petition to terminate a guardianship to a change of child custody among natural parents.” Smith v. Thomas, 373 Ark. 427, 432, 284 S.W.3d 476, 479 (2008).  As a result, in order for a parent to terminate a guardianship, the parent was required to prove that there had been a material change in circumstances. Graham v. Matheny, 2009 Ark. 481, 6, 346 S.W.3d 273, 277 (2009).  In Graham, the Arkansas Supreme Court recognized that “there is confusion regarding the standard to be used in termination-of-guardianship cases.” Id. at 14, 346 S.W.3d at 280-81.  Therefore, the Arkansas Supreme Court took the opportunity to set forth five principles that apply in termination of guardianship cases.  Perhaps the most significant of those principles was that “a change-of-custody analysis using the material-change-of-circumstances standard should not be done in termination-of-guardianship cases.” Id. at 15, 346 S.W.3d at 281.

The Court in Graham noted that the guardianship statute, which provides that “[a] guardianship may be terminated by court order . . . [if] the guardianship is no longer necessary or for the best interest of the ward,” is a disjunctive test. See Ark. Code Ann. § 28-65-401(b)(3).  Nevertheless, the Arkansas Supreme Court still held that even if there is evidence that a guardianship is no longer necessary, the best interests of the child must still be examined.  The concurrence in Graham, written by Justice Hannah, joined by Justice Danielson, made the point that the statute is a disjunctive statate and argued that “[u]pon 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 [the ward] that the guardianship continue.” Graham, 2009 Ark. 481, at 19, 346 S.W.3d at 283 (Hannah, C.J., concurring).

The concurrence, in a footnote, made one other point: That the parties had not raised the question of whether the guardianship statute as written violated parents’ constitutional rights to the custody and control of children. Id. at 18, 346 S.W.3d at 282 (Hannah, C.J., concurring).  Specifically, the concurrence made reference to Troxel v. Granville, 530 U.S. 57, 120 Sup. Ct. 2054 (2000), in which the Arkansas Supreme Court had held in a grandparent visitation case that “there is a presumption that fit parents act in the best interests of their children.”  The Arkansas Supreme Court had also recognized this principle in a grandparent visitation case, holding that “a fit parent is given a presumption that he or she is acting in a child’s best interests.” Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002).

Less than three years after the decision in Graham v. Metheny was handed down, the Arkansas Supreme Court would address head-on the issue of parental rights in the context of a termination of a consensual guardianship.

B. Application of Troxel to Termination of Guardianship Cases

As mentioned previously, S.H. I was the first appeal of the case that is the subject of this blog post.  The paternal grandparents in S.H. I filed a petition for guardianship making numerous allegations against the mother.  The mother and father then consented to guardianship of her daughter by the daughter’s paternal grandparents.  About a-year-and-a-half later, the mother sought to terminate the guardianship, but the circuit court denied the petition, and the mother appealed.

In S.H. I, the Arkansas Supreme Court held that the guardianship statute was unconstitutional as applied to a parent who consents to a guardianship and later seeks to terminate that guardianship.  Based upon Troxel, the Arkansas Supreme Court held that a natural parent who has not been deemed unfit is presumed to be acting in the child’s best interest, but the question was whether a parent who consents to a guardianship waives that presumption.  In S.H. I, the Arkansas Supreme Court “align[ed] [itself] with the majority view and [held] that parents who have not been found unfit do not relinquish their fundamental liberty interest in raising their children by consenting to a guardianship and, thus, they are entitled to the Troxel presumption in a proceeding to terminate that guardianship.” S.H. I, 2012 Ark. 245, at 14, 409 S.W.3d at 316.

Based on this holding, the Arkansas Supreme Court set forth a two-part rule, stated as follows:

[W]hen a natural parent, who has not been deemed unfit and who has consented to a guardianship, files a petition to terminate that guardianship, that parent must put forth evidence that the guardianship is no longer necessary. Once the court is satisfied that the conditions necessitating the guardianship have been removed, the guardians shoulder the burden of rebutting the presumption that termination is in the child’s best interest.

S.H. I, 2012 Ark. 245, at 15, 409 S.W.3d at 316.

There was a concurring/dissenting opinion in S.H. I, authored by Justice Goodson and joined by Justices Brown and Corbin.  That opinion made two basic points relating to the first prong of the test (regarding whether the guardianship is still necessary).  First, the concurring/dissenting justices argued that “the fundamental right at stake in this case must be protected by placing the entire burden of proof on those who seek to override the parent’s presumptively valid decision.” S.H. II, 2012 Ark. 245, at 22, 409 S.W.3d at 320 (Goodson, J., concurring/dissenting).  In other words, the guardian would not only have to rebut the best-interest presumption (the second prong of the test), the guardian would also have to prove that the guardianship remains necessary (the first prong of the test).

Second, the concurring/dissenting justices argued that the majority opinion had not made clear what burden of proof the natural parent would bear on the first prong of the test.  Particularly, the concurring/dissenting justices questioned whether the burden on the first prong of the test was a burden of going forward or a burden of proof.  The Arkansas Supreme Court’s decision in the second appeal of this case, S.H. II, would resolve this and other ambiguities that remained after S.H. I.

II. S.H. II: Explanation of the Burdens of Proof . . . And an Alternative Analysis?

On remand of S.H. I, the circuit court again denied the mother’s petition to terminate guardianship, and the mother appealed again.  The Arkansas Supreme Court reversed, this time directing the circuit court to return custody of the daughter back to the mother. S.H. II, 2015 Ark. 75.  The decision was a 3-2-2 decision, and both the majority opinion and the concurring opinion must be evaluated to determine how these cases will be handled in the future.

A. The Majority Opinion: Explanation of the Burdens of Proof

As discussed above, there is essentially a two-part test in termination of consensual guardianship cases.  In the first part of the analysis, the parent seeking to terminate guardianship must establish that the conditions necessitating guardianship no longer exist.  In the second part of the analysis, the guardians then bear the burden of overcoming the presumption that termination of the guardianship would be in the child’s best interest.

(i) Step 1 of the Test from S.H.

As mentioned previously, the Arkansas Supreme Court in S.H. I did not indicate whether the burden in the first part of the test from S.H. I was a burden of going forward or a burden of proof.  In S.H. II, the Arkansas Supreme Court clarified that this is a burden of going forward, and not a burden of proof.  The Arkansas Supreme Court also set forth exactly how a parent meets this standard: “by revoking consent and informing the court that the conditions necessitating the guardianship no longer exist.” S.H. II, 2015 Ark. 75, at 5.  The Arkansas Supreme Court reasoned that this rule applies because a fit parent is presumed to act in the best interest of his or her child, including in making the decision to terminate a guardianship.

(ii) Step 2 of the Test from S.H.

With respect to the second prong of the test from S.H. I (the best interests of the child), the opinion in S.H. I did not indicate whether the guardian’s burden was by a preponderance of the evidence or clear and convincing evidence.  In S.H. II, the Arkansas Supreme Court held that the burden was by clear and convincing evidence. Ark. Code Ann. § 9–27–341(b)(3).  With respect to the mother in S.H. II, the Arkansas Supreme Court held that “while not an ideal parent, [she] remained a fit parent, which is all that matters for constitutional purposes.” S.H. II, 2015 Ark. 75, at 12.

B. Concurring Opinion — Statutory Interpretation

The concurring opinion agreed that a fit parent meets the first prong of the test from S.H. I simply by revoking consent to the guardianship.  Further, the concurring opinion agreed that the standard for the second prong of the test from S.H. I requires that the guardian bear the burden of proof by clear and convincing evidence.  Where the concurrence differs, however, is that the concurrence notes that the guardianship statute allows a guardianship to be terminated when “the guardianship is no longer necessary or for the best interest of the ward.” Ark. Code Ann. § 28-65-401.  The concurring opinion noted that this is a disjunctive test, meaning that once the parent meets the first prong of the test, the analysis should end.  The practical impact of this test would appear to be that once a fit parent who has consented to the guardianship informs the court that he or she revokes the guardianship, the guardianship would have to be terminated by the court.

Although it is sometimes tempting to ignore concurring opinions, this is not an opinion that should be ignored.  There are a couple of reasons for this.  First, the Court’s opinion (written by Justice Wood, joined by Justices Goodson and Wynne) was technically not joined by a majority of the court (the opinions all refer to the opinion as the majority opinion, however, so this blog post is using the same terminology).  The concurring opinion was written by Justice Baker, joined by Justice Hart, which gave the Court a majority.

Second, and perhaps more important, the majority opinion hinted that it would apply a different analysis in the future.  In fact, the majority opinion “acknowledge[d] [the two-step process from S.H. I] is not entirely consistent with the guardianship statutes, which provide that a court may terminate a guardianship ‘if, for any other reason, the guardianship is no longer necessary or for the best interest of the ward.'” S.H. II, 2015 Ark. 75, at 14.  The opinion further acknowledged that the decision in Graham v. Metheny had converted the statute from a disjunctive (“or”) statute in to conjunctive (“and”) statute.  This sounds very similar to the argument made by the concurrence.

So, why did the Court in S.H. II apply the two-step analysis in spite of these acknowledgments?  Recall that S.H. II was the second appeal of the same case, and that the first appeal (S.H. I) was where the Court had initially announced the burden-shifting procedure.  Therefore, the Court held that “[t]he constraints of the law of the case prevent this court from following the cardinal rule of statutory interpretation, which is ‘to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language.'” S.H. II, 2015 Ark. 75, at 15 (quoting McMillan v. Live Nation Entm’t, Inc., 2012 Ark. 166, at 4, 401 S.W.3d 473, 476.

C. The Dissent

The dissent was written by Justice Danielson, joined by Chief Justice Hannah.  Although the dissent argued that the opinion in S.H. II was a reversal of the opinion in S.H. I, the dissent seemed more concerned with the majority’s decision to order the circuit court to enter an order returning custody to the mother, rather than remanding the case for further proceedings.

III. Practical Implications of S.H. II

At this time, the law on this issue isn’t entirely clear, although S.H. II certainly answered several questions.  It will be worth watching to see what analysis the Arkansas Supreme Court applies when it reviews a case in which the Court is no longer bound by the law of the case doctrine that applied in S.H. II.  Based on the last part of the majority opinion, it is certainly possible that the majority will adopt the reasoning of the concurrence, but we won’t know for certain until the Arkansas Supreme Court hands down another case on this topic.

So, there are two practical takeaways from this case: (1) This case clarifies a trend that began several years ago of providing more and more protections to fit parents who consented to guardianship; and (2) In order to preserve all arguments for appeal, trial attorneys representing such parents should make arguments based both on the analysis applied by the majority and the analysis applied by the concurrence.

* Our firm was honored to represent the appellant in S.H. II, but would also like to acknowledge the hard work of the trial attorneys (and previous appellate attorneys in S.H. I), Teresa Wineland and Bonnie Johnson, for laying the groundwork and preserving the issues that led to this outcome.