{ "id": 3664853, "name": "Bryan K. SMITH v. Danny THOMAS", "name_abbreviation": "Smith v. Thomas", "decision_date": "2008-05-15", "docket_number": "07-1170", "first_page": "427", "last_page": "434", "citations": [ { "type": "official", "cite": "373 Ark. 427" }, { "type": "parallel", "cite": "284 S.W.3d 476" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 9-13-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2008, "opinion_index": 0 }, { "cite": "372 Ark. 404", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3509236 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/ark/372/0404-01" ] }, { "cite": "32 Ark. App. 46", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6644632 ], "weight": 3, "year": 1990, "pin_cites": [ { "parenthetical": "the welfare of the child is the polestar in every child custody case, and though the natural parent is entitled to a legal preference, it is the natural parent's burden to show that termination of a guardianship held by the child's aunt is in the best interest of the child" } ], "opinion_index": 0, "case_paths": [ "/ark-app/32/0046-01" ] }, { "cite": "357 Ark. 635", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5402011 ], "weight": 3, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/357/0635-01" ] }, { "cite": "342 Ark. 662", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342350 ], "weight": 9, "year": 2000, "pin_cites": [ { "page": "669" }, { "page": "741" }, { "page": "669" }, { "page": "741" }, { "page": "669" }, { "page": "741" }, { "parenthetical": "statutory natural-parent preference does not automatically attach to a child's biological parent, and court refused to terminate guardianship in favor of grandparents where it found father unsuitable custodian" } ], "opinion_index": 0, "case_paths": [ "/ark/342/0662-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-65-210", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2004, "opinion_index": 0 }, { "cite": "371 Ark. 60", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3490871 ], "weight": 7, "year": 2007, "pin_cites": [ { "page": "65", "parenthetical": "internal citations omitted" }, { "page": "520", "parenthetical": "internal citations omitted" }, { "page": "71" }, { "page": "523" }, { "page": "71" }, { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/ark/371/0060-01" ] }, { "cite": "372 Ark. 233", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3509548 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/ark/372/0233-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-65-204", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 5, "year": 2004, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "202 S.W.3d 485", "category": "reporters:state_regional", "reporter": "S.W.3d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "360 Ark. 445", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5460571 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ark/360/0445-01" ] }, { "cite": "100 Ark. App. 195", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139012 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark-app/100/0195-01" ] } ], "analysis": { "cardinality": 703, "char_count": 15873, "ocr_confidence": 0.766, "pagerank": { "raw": 1.3687333544357375e-07, "percentile": 0.6378705862774239 }, "sha256": "7133146995b60143e41a3291245af9b386dc10d0dc04497b949e01e2beb8182c", "simhash": "1:1d6d693698caf706", "word_count": 2639 }, "last_updated": "2023-07-14T21:24:36.449526+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bryan K. SMITH v. Danny THOMAS" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nAppellant Bryan K. Smith appeals from an order of the circuit court refusing to terminate the guardianship of Danny and Sandra Thomas for their grandson, B.S., who at the time of this writing is age nine. The court of appeals affirmed the circuit court\u2019s order. See Smith v. Thomas, 100 Ark. App. 195, 266 S.W.3d 226 (2007). This court then granted Smith\u2019s petition for review of that decision. We affirm the circuit court\u2019s order.\nOn July 31, 1998, Bryan K. Smith and Dandra Thomas had a child, B.S., out of wedlock. Smith and Dandra Thomas never lived together, and Smith never had custody of the child. B.S. resided with his mother, Dandra, until her untimely death on December 27, 2003. Immediately after her death, on December 31, 2003, Dandra\u2019s parents, Danny and Sandra Thomas, petitioned the Faulkner County Circuit Court to be appointed guardians of B.S. Smith counter-petitioned and also sought to be appointed B.S.\u2019s guardian. On January 20, 2004, the circuit court entered an order granting a permanent guardianship to the Thomases. The circuit judge found that it was in B.S.\u2019s best interest to be with his grandparents, as Smith, a full-time college student, could not provide the stability that B.S. needed at that point in his life. Smith was ordered to pay $130 per month in child support to the Thomases and was awarded liberal visitation rights.\nOn April 13, 2004, the Thomases petitioned the circuit court to modify the order of guardianship regarding visitation. They alleged that Smith continued to cohabit with a woman to whom he was not married and that B.S. was subjected to this living arrangement during visitation. They further asserted that Smith refused to inform them of his whereabouts during his visitation with B.S. and that he 'exhibited poor parenting ability. They requested that Smith be ordered to take parenting classes and that his visitation rights be limited. Smith responded and filed a counter-motion to terminate the guardianship.\nOn June 15, 2004, the circuit judge held a hearing and refused to modify Smith\u2019s visitation award. The circuit judge did, however, order Smith to attend parenting classes and ordered both parties to attend mediation. During the hearing, the circuit judge ruled from the bench that Smith still could not provide the stability that B.S. needed because he was a full-time student. The judge ordered the mediation to improve the communication between the parties and said from the bench: \u201cI want all four of you to submit to mediation because next summer I\u2019m planning on a complete change of custody if things go the way they should, the way I\u2019m expecting them to go.\u201d The circuit judge further told Smith: \u201cI\u2019m going to expect to see you ready by next summer to do what you have to do.\u201d The circuit judge noted that Smith would be graduating from college and marrying his fianc\u00e9e the following summer.\nOn March 9, 2006, Smith again moved to terminate the guardianship and alleged that he had married his fianc\u00e9e, that he had a stable income sufficient to provide for B.S. because of his employment with the Department of Human Services and as a bail bondsman, and that he had maintained continuous personal contact with B.S. for the past two years. On August 3, 2006, the circuit judge held a hearing. At the conclusion of the hearing, the judge found Smith \u201cqualified\u201d but also found some of his testimony \u201cdisturbing,\u201d such as his failure to complete an appropriate parenting class against the judge\u2019s clear direction and his inconsistent statements regarding his smoking habit. The circuit judge was further concerned about a domestic battery incident that had previously occurred in Smith\u2019s home as well as his failure to finish college and his \u201cbad feelings\u201d toward the Thomases.\nOn August 17, 2006, the circuit judge entered an order denying Smith\u2019s motion to terminate the guardianship. Relying on Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005), the circuit judge ruled that although Smith was the natural father of B.S., the legal preference to which he was entitled under the guardianship statute was subservient to the best interest of the child. The judge then found that it was in B.S.\u2019s best interest to remain in the custody of the Thomases. The judge ordered that visitation would continue as previously ordered and that both parties would continue mediation in an attempt to resolve the issues associated with visitation.\nSmith now asserts in this appeal that the circuit court clearly erred in denying his petition to terminate the Thomases\u2019 guardianship. He contends that pursuant to Arkansas law, a qualified parent should be preferred over all others for appointment as the child\u2019s guardian. See Ark. Code Ann. \u00a7 28-65-204 (Repl. 2004). He insists that because the circuit court found that he was qualified, he should have been given preference over the Thomases for the custody of B.S. He further contends that he has discharged his duties and obligations as B.S.\u2019s father and that he has maintained constant contact and visitation with the child. He notes that he is gainfully employed and able to financially support B.S., and he insists that he completed a proper parenting course as previously ordered by the circuit court. He maintains that he has consistently participated in the life of B.S. and that he has demonstrated his ability to take his parenting responsibilities seriously. He admits that he has yet to obtain a college degree and that he smokes to relieve stress, but he insists that this does not make him unsuitable to be a guardian under the guardianship statute and that there has been no testimony about his lack of moral character that would prevent him from being a loving and stable custodial guardian to B.S.\nThe Thomases counter that they have provided for B.S. since his birth, that he has lived in their home for most of his life, and that they have been his primary caregivers throughout his life. They insist that Smith continues to exhibit poor parenting skills and that he is not a proper role model for the child. They argue that his refusal to cooperate and communicate with them has created problems.\nThe Thomases further insist that Smith\u2019s inappropriate behavior toward them has negatively impacted B.S. and that Smith has improperly discussed the court proceedings with B.S. They underscore the fact that the circuit court found during the August 3, 2006 hearing that Smith was his own worst witness, as he misrepresented the truth and misstated the facts to better suit him. They argue, in addition, that Smith has never taken financial responsibility for B.S., that he has never demonstrated stability in his own life, and that he has been insensitive to creating a stable and normal environment for B.S. For example, they point to the fact that Smith often leaves B.S. in the care of Smith\u2019s sixteen-year-old nephew during visitation. They insist that the best-interest-of-the-child standard is the proper standard to apply in guardianship-termination proceedings and that the circuit judge correctly applied that standard in allowing B.S. to remain in their custody.\nWhen we grant a petition for review, we treat the appeal as if it had been originally filed in this court. See Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).\nOur standard of review in probate proceedings is clear:\nWe review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses.\nDevine v. Martens, 371 Ark. 60, 65, 263 S.W.3d 515, 520 (2007) (internal citations omitted).\nPursuant to our Guardianship Code, before appointing a guardian, the circuit court must determine: (1) the person for whom a guardian is sought is either a minor or otherwise incapacitated; (2) a guardianship is desirable to protect the interests and needs of the incapacitated person; and (3) the person to be appointed as guardian is qualified and suitable to act as such. Ark. Code Ann. \u00a7 28-65-210 (Repl. 2004); see also Devine v. Martens, supra; Freeman v. Rushton, supra; Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000).\nThis court has also said that \u201c[w]here the incapacitated person is a minor, the key factor in determining guardianship is the best interests of the child.\u201d Devine, 371 Ark. at 71, 263 S.W.3d at 523; Blunt, 342 Ark. at 669, 30 S.W.3d at 741. Our Guardianship Code specifically provides: \u201cThe parents of an unmarried minor, or either of them, if qualified and, in the opinion of the court, suitable, shall be preferred over all others for appointment as guardian of the person.\u201d Ark. Code Ann. \u00a7 28-65-204(a) (Repl. 2004).\nIndeed, \u201c[t]he [guardianship] law prefers a parent over a grandparent or other third person unless the parent is proved to be incompetent or unfit.\u201d Devine, 371 Ark. at 71, 263 S.W.3d at 523. We have said, however, that this preference, \u201cis but one factor that the probate court must consider in determining who will be the most suitable guardian for the child.\u201d Id.; Blunt, 342 Ark. at 669, 30 S.W.3d at 741. We have further said that \u201cany inclination to appoint a parent or relative [as guardian] must be subservient to the principle that the child\u2019s interest is of paramount consideration.\u201d Blunt, 342 Ark. at 669, 30 S.W.3d at 741. Finally, we have made it clear that we equate a petition to terminate a guardianship to a change of child custody among natural parents. See, e.g., Crosser v. Henson, 357 Ark. 635, 187 S.W.3d 848 (2004); In re Guardianship of Markham, 32 Ark. App. 46, 795 S.W.2d 931 (1990).\nIn making its ruling, the circuit judge relied heavily on Freeman, supra. Indeed, the facts of that case are strikingly similar to those presented here. In Freeman, the appellant had a child out of wedlock with the appellees\u2019 daughter. The child lived with his mother and the appellees, the child\u2019s grandparents, after his birth. The appellant, who was the natural father, never had custody of the child, though he did pay child support and exercised some, but not all, of his visitation privileges. The child\u2019s mother was subsequently killed in an automobile accident, and the appellees filed a petition for appointment of guardianship over the child. The appellant sought to obtain custody of the child by virtue of the statutory natural-parent preference. The circuit court appointed the appellees as the child\u2019s guardians, finding that the child had lived with the appellees since birth, that the appellees had been responsible for meeting the child\u2019s educational and medical needs, and that though the appellant was a qualified parent, he had never spent an extended amount of time with the child.\nThis court affirmed the circuit court\u2019s decision in Freeman, stating that the statutory preference is only one factor that the circuit court must consider in determining who would be the most suitable guardian for the child. We interpreted Ark. Code Ann. \u00a7 28-65-204(a) as follows:\nIt is the trial court\u2019s discretion to make a determination whether a parent is \u201cqualified\u201d and \u201csuitable.\u201d See Ark. Code Ann. \u00a7 28-65-204(a). Assuming such a determination is made, however, the analysis does not end there. This statute does not mandate appoint,ment. It merely states that such a parent \u201cshall be preferred over all others for appointment as guardian.\u201d Id. We must assume that had the General Assembly intended to require appointment, it would have stated that a parent who is qualified and suitable shall be appointed as guardian. This statute does not do that. This statute merely grants a preference and does not negate the trial judge\u2019s discretion to weigh all of the facts before him and to determine the credibility of the witnesses in making his determination of guardianship.\nFreeman, 360 Ark. at 451, 202 S.W.3d at 488.\nIn sum, in Freeman, this court made it abundantly clear that in both custody and guardianship situations, the child\u2019s best interest is of paramount consideration, and the statutory natural-parent preference is one factor. However, that preference is ultimately subservient to what is in the best interest of the child. This principle has been recognized in other cases as well. See, e.g., Crosser, supra (natural-parent preference is not the absolute determinant in a termination-of-guardianship case, and the fact that the noncustodial parent was now qualified did not constitute a sufficient change in circumstances to warrant terminating the guardianship and taking custody of the child away from its grandparents); Blunt v. Cartwright, supra (statutory natural-parent preference does not automatically attach to a child\u2019s biological parent, and court refused to terminate guardianship in favor of grandparents where it found father unsuitable custodian); In re Guardianship of Markham, supra (the welfare of the child is the polestar in every child custody case, and though the natural parent is entitled to a legal preference, it is the natural parent\u2019s burden to show that termination of a guardianship held by the child\u2019s aunt is in the best interest of the child).\nIn this case, the circuit court ruled that it was in B.S.\u2019s best interest to remain in the custody of the Thomases under the guardianship. Though the circuit judge found Smith to be qualified, she found that some of his testimony was not credible, and she was disturbed by his testimony regarding his smoking habit and a previous domestic-battery incident. The circuit judge acknowledged that Smith was entitled to a natural-parent preference under \u00a7 28-65-204(a) but ruled that the preference was subservient to B.S.\u2019s best interest. The circuit court weighed the evidence and found that it was in B.S.\u2019s best interest to remain with the Thomases, with whom B.S. had lived for virtually all of his life and who had provided a caring and stable home for B.S. The circuit court\u2019s ruling was not clearly erroneous. Based on this court\u2019s previous decisions, the circuit court correctly ruled that the statutory natural-parent preference was subservient to the best interest of the child.\nSmith argues for his second point on appeal that his due process rights were violated by the circuit court\u2019s refusal to terminate the guardianship and that he was deprived of the liberty interest to raise his child. It appears from the record that Smith failed to raise this issue to the circuit court. This court has repeatedly said that an appellant must raise an issue and make an argument to the circuit court for it to be preserved for appeal, even if the issue is constitutional in nature. See, e.g., Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). Accordingly, we do not address this issue.\nAffirmed.\nThis court acknowledges that the issue of who should be appointed as a child\u2019s guardian is a separate issue from that of grandparent visitation. Grandparent visitation is governed by a completely different statute under the Family Law Code. See Ark. Code Ann. \u00a7 9-13-103 (Repl. 2008).\nWe disagree with the statement in the court of appeals\u2019 opinion in this case that because this case does not involve the initial selection of a guardian, the natural-parent preference in \u00a7 28-65-204(a) is inapplicable. The statute does not make that distinction; nor does this court. Though we affirm the court of appeals\u2019 ultimate decision, we repudiate that conclusion.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "Sheila F. Campbell, for appellant.", "Coplin & Heuer, by: Sam T. Heuer and Jocelyn A. Stotts, for appellee." ], "corrections": "", "head_matter": "Bryan K. SMITH v. Danny THOMAS\n07-1170\n284 S.W.3d 476\nSupreme Court of Arkansas\nOpinion delivered May 15, 2008\nSheila F. Campbell, for appellant.\nCoplin & Heuer, by: Sam T. Heuer and Jocelyn A. Stotts, for appellee." }, "file_name": "0427-01", "first_page_order": 453, "last_page_order": 460 }