The Arkansas Supreme Court Clarifies the Standard for Terminating Consensual Guardianships of Minors

Suppose a mother consented to a guardianship of her child because she had a drug problem and was seeking treatment.1 Now suppose the mother, after putting her life back together, walks into your office and wants to terminate the guardianship. What standard applies to her petition to terminate the guardianship? This article attempts
to answer that question.

The Arkansas statute governing guardianships 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.”2 While this statute might appear to be straightforward, there have been four major Arkansas Supreme Court cases in the last six years or so dealing with this issue, each of them with a concurrence, a dissent, or both.

Some of the complexity arises because of a 2000 case from the Supreme Court of the United States dealing with grandparent visitation. This article will begin with a short synopsis of that case, and then move to the evolution of this area of law in light of that opinion.

Troxel v. Granville: “There is a presumption that fit parents act in their children’s best interests.”3

In Troxel v. Granville, the United States Supreme Court examined a Washington statute that allowed courts to award visitation of a child to any person if the visitation was in the best interest of the child. The Supreme Court held that the statute was unconstitutional because it gave no deference to a parent’s decision regarding visitation. The Court held that “[t]here is a presumption that fit parents act in their children’s best interests.”

Although the Troxel decision would eventually become important in termination of consensual guardianship cases in Arkansas, the first major Arkansas case on point that began to move the needle in favor of parental rights did so without relying on Troxel.

Graham v. Matheny: “[T]here is confusion regarding the standard to be used in termination-of-guardianship cases.”4

The starting point for the evolution of the law relating to termination of consensual guardianships must begin with Graham v. Matheny because, in that case, the Arkansas Supreme Court explained the state of the law as it stood at the time and made several clarifications. At the time Graham was decided, for example, there were cases that held that the natural parent preference was subservient to the best interests of the child.5

Because of this confusion, the Arkansas Supreme Court enumerated five clarifications, summarized below:

The standard in termination of guardianship cases, as set forth in the statute, is (1) whether the guardianship is no longer necessary, or (2) whether termination is in the best interests of the ward.
When evaluating a petition to terminate a consensual guardianship, the first question is whether the guardianship is still necessary.
When considering whether a guardianship is still necessary, the “paramount consideration” is the best interests of the child.
If the guardianship has been in place for a long period of time, the stability of the child’s environment is a “critical factor” in determining the best interests of the child.
The material-change-of-circumstances standard does not apply in termination of guardianship cases.

This last clarification was important because, until Graham was decided, there was a question as to whether a parent seeking to terminate a consensual guardianship had to meet the heightened standard of a material change of circumstances.

In a footnote in his concurring opinion in Graham, Chief Justice Hannah noted that neither party had raised the issue of whether Arkansas’ guardianship termination statute ran afoul of the holding in Troxel that fit parents are presumed to act in the best interests of their children.6 Three years later, the Arkansas Supreme Court would have the opportunity to address that issue directly.

In the Matter of the Guardianship of S.H. (“S.H. I”): “[P]arents who have not been deemed unfit do not forfeit their fundamental liberty interest in raising their children by consenting to a guardianship.”7

The first Arkansas case to address termination of consensual guardianships in light of Troxel was S.H. I. In that case, the child’s mother had consented to allow the child’s paternal grandparents to be guardians of the child. Approximately 18 months later, the child’s mother sought to terminate the guardianship, but the circuit court denied the mother’s petition.

Although it was generally accepted at the time that fit parents were presumed to act in the best interests of their children,8 the question in S.H. I was whether a parent who consented to a guardianship waived that presumption. By the time S.H. I was decided in 2012, a number of states had addressed this issue, and a majority of those states had held that a fit parent does not waive the presumption.9 The Arkansas Supreme Court adopted this view, holding that parents who consent to a guardianship and then later seek to terminate that guardianship “are entitled to the Troxel presumption in a proceeding to terminate that guardianship.”10

The next question, then, was how this presumption was to be applied. The Arkansas Supreme Court announced a two-part test, holding that whenever a natural parent who had not been determined to be unfit sought to terminate a consensual guardianship:

The parent must put forth evidence that the guardianship is no longer necessary; and
Once the parent meets this burden, a presumption arises that termination is in the child’s best interest, and the guardians bear the burden of overcoming that presumption.

S.H. I was a 4-3 decision, with three justices concurring in part and dissenting in part. Justice Goodson, writing for the concurring/dissenting justices, made two basic points. First, she argued that in order to protect a parent’s fundamental right to raise his or her children, the guardians (rather than the parent) should bear the burden
on both prongs of the test. Second, she argued that the majority opinion had left the burden of proof on the first prong of the test unclear.

In the second appeal of this case, the Arkansas Supreme Court would clarify the burden on both prongs of the test.

In the Matter of the Guardianship of S.H. (“S.H. II”): “Fit, natural parents who consent to a guardianship need additional protection in seeking to terminate the guardianship.”11

After S.H. I was remanded, the circuit court applied the two-prong test, but still denied the petition to terminate the guardianship. Therefore, the case was appealed again. The court’s decision, which announced the burdens to be applied to both prongs of the test, was a 3-2-2 decision, with Justice Wood writing the opinion of the court, Justice Baker writing a concurring opinion, and Justice Danielson writing a dissenting opinion.

For the first prong, the Arkansas Supreme Court clarified that the burden is a burden going forward. The court also specified exactly what a fit parent must do in order to meet this burden: revoke consent and inform the court that the conditions necessitating the guardianship no longer exist. The basis for this holding was that a fit parent is presumed to act in a child’s best interest. Therefore, if a fit parent revokes consent, that decision is presumed to be in a child’s
best interest.

For the second prong, the court held that once the burden shifts to the guardian to prove that it is in the best interest of the child for the guardianship to continue, the clear-and-convincing-evidence standard applies. The court held that this standard applied because otherwise, the guardian and the parent would be on an equal playing field.

The concurring opinion, written by Justice Baker, referred back to the court’s opinion in Graham v. Matheny that the termination statute is a disjunctive statute. Therefore, the concurring justices argued, a parent seeking to terminate a consensual guardianship need only prove that the guardianship is no longer necessary or that termination would be in the best interest of the child.

The opinion of the court, written by Justice Wood, acknowledged this apparent contradiction between the termination statute (which was written in the disjunctive) and the two-pronged test from S.H. I (which was written in the conjunctive). The court held, however, that because this was the second appeal of the same case, the court
was bound by the law of the case doctrine to apply the test from S.H. I. The court’s opinion hinted, however, that a change was coming, holding that the law of the case doctrine was preventing it 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.’”12

Indeed, that change would come less than three months later.

In the Matter of the Guardianship of W.L.: “[A] fit parent’s decision regarding his or her children is conclusive.”13

In W.L., the Arkansas Supreme Court set out to fully clarify Arkansas law regarding termination of consensual guardianships. Like S.H. I and S.H. II, W.L. involved a parent (this time a father) who had consented to a guardianship in favor of the child’s grandparents and later attempted to revoke the consent. In W.L., the circuit court
denied the father’s petition to terminate the guardianship.

The court in W.L. noted that it had previously held in Graham v. Matheny that the termination statute was a disjunctive statute, but had then held that a parent proceeding under the first prong (that the guardianship was no longer necessary) was still required to prove that termination was in the best interest of the child. As a result, the court held in W.L., the decision in Graham had “the effect of turning the test into a conjunctive one—the or becomes an and.”14

Because the court was not bound by the law of the case doctrine in W.L., the court returned to the plain language of the statute and held that the test to terminate a consensual guardianship is a disjunctive test. Because of this, the court held that a parent seeking to terminate a guardianship may proceed under either prong of the test.

For a parent proceeding under the first prong, the test is very clear. Relying on its decision in S.H. II, the court held that a consensual guardianship is no longer necessary once a fit parent revokes the consent. Therefore, the court held, once a fit parent files the petition revoking consent, “[t]he fit parent does not have to prove anything else.”15

As he had in S.H. II, Justice Danielson wrote a dissent in W.L. He argued that the court’s opinion had strayed from the text of the guardianship statute because that statute provides that a guardianship “may” be terminated if the guardianship is no longer necessary or if termination is in the best interest of the ward.

The majority opinion addressed this argument in a footnote, holding that “[t]his is a correct statement of the law; however, there were no other facts in front of the court that could overcome [W.L.’s father’s] fundamental right to raise his child.”16

Practical Considerations in the Aftermath of W.L.

Under the court’s decision in W.L., a fit parent seeking to terminate a guardianship prevails simply by filing a petition indicating that the parent is revoking consent to the guardianship and requesting that the
court terminate the guardianship. Given the ease with which a fit parent can terminate a consensual guardianship under this prong of the test, a parent seeking to terminate a consensual guardianship should almost always proceed under this prong. Typically, the analysis will end there, and the parent’s revocation of consent will terminate the guardianship.

There are, however, a few problems that could still prevent a parent who revokes consent from regaining custody of the child. First, recall that the Troxel presumption applies only to fit parents. Therefore, a guardian seeking to keep the guardianship in place could seek to have the parent declared unfit. There is a lengthy discussion of parental unfitness in W.L., but to summarize, the guardians would have a high burden to meet on this point in order to continue the guardianship.

Second, the court in W.L. acknowledged that the statute provides that a guardianship “may” be terminated if the reasons for the guardianship no longer exist, but held that there were no facts in W.L. that would overcome the fundamental right of the father in that case to raise his own child. The author of this article is aware of at least one case where a circuit court relied on this footnote to deny a petition by a fit parent to terminate a consensual guardianship.

Third, given that parents often consent to guardianships in a time of upheaval in their own life, such as during a divorce, it is important to bear in mind that once the guardianship is terminated, there is often still a custody determination to be made between the two parents. This is important because one parent could succeed in having a guardianship terminated, only to have the other parent attempt to gain custody.

Conclusion

In the aftermath of W.L., it is safe to say that most attempts to terminate a consensual guardianship will be successful. Therefore, if the mother mentioned in the first paragraph of this article were to walk into your office today seeking to terminate a consensual guardianship, you could tell her that she would most likely prevail in having
the guardianship terminated. In this and most other consensual guardianship cases, simply informing the court of the revocation of consent (by filing a petition to terminate the guardianship) will be sufficient to terminate the guardianship.

Whether you agree with the decision in W.L. or not, one thing is clear: an area of the law that once created significant confusion is now subject to a very straightforward analysis.

Endnotes:
1. See Crenshaw v. Crenshaw, 2012 Ark. App. 695.
2. Ark. Code Ann. § 28-65-401(b).
3. Troxel v. Granville, 530 U.S. 57, 58 (2000).
4. Graham v. Matheny, 2009 Ark. 481, at 14, 346 S.W.3d 273, 280–81.
5. Smith v. Thomas, 373 Ark. 427, 433, 284 S.W.3d 476, 480 (2008).
6. Graham v. Matheny, 2009 Ark. 481, 16, 346 S.W.3d 273, 281 (Hannah, C.J., concurring).
7. In the Matter of the Guardianship of S.H., 2012 Ark. 245, 22, 409 S.W.3d 307, 320 (“S.H. I”).
8. By the time S.H. I was decided, the Arkansas Supreme Court had adopted Troxel’s holding that fit parents are presumed to act in their children’s best interest and had held that the Arkansas Grandparental Visitation Act was unconstitutional. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002).
9. The Arkansas Supreme Court in S.H. I cited to 15 cases that had so held.
10. S.H. I, 2012 Ark. 245, at 14, 409 S.W.3d at 316.
11. In the Matter of the Guardianship of S.H., 2015 Ark. 75, at 10, 455 S.W.3d 313, 320 (“S.H. II”).
12. S.H. II, 2015 Ark. 75, at 15, 455 S.W.3d at 322.
13. In the Matter of the Guardianship of W.L., 2015 Ark. 289, at 8, 467 S.W.3d 129, 134.
14. Id., at 6, 467 S.W.3d at 132-33.
15. Id., at 8, 467 S.W.3d at 134.
16. Id., at 15 n.6, 467 S.W.3d at 137 n.6.