Hood v. Hood , 493 S.W.3d 779 ( 2016 )

Cite as 2016 Ark. App. 266
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-663
LINDSEY NICOLE HOOD Opinion Delivered May 18, 2016
APPELLANT
APPEAL FROM THE SALINE
V. COUNTY CIRCUIT COURT
[NO. 63PR-13-590-2]
JIMMY HOOD, RUTH ANN HOOD, HONORABLE GARY ARNOLD,
AND SHERRIE FIELDS JUDGE
APPELLEES
REVERSED
BART F. VIRDEN, Judge
The Saline County Circuit Court appointed appellees Jimmy and Ruth Ann Hood
(the Hoods) guardians of appellant Lindsey Nicole Hood’s (Lindsey’s) children, C.H. and
H.H.1 On appeal, Lindsey challenges the trial court’s authority to continue a temporary
guardianship beyond ninety days and argues that, even if she had consented to the
guardianship, it should have ended immediately once she objected to it. We agree with both
components of Lindsey’s first point and therefore reverse. We do not reach the merits of her
second argument that venue in Saline County was improper.
I. Guardianships
Arkansas Code Annotated section 28-65-218(a)(1) (Repl. 2012) provides in relevant
1
Appellee Sherrie Fields, the children’s maternal grandmother, filed a petition to
intervene in the guardianship proceedings initiated by the Hoods and sought to be appointed
permanent guardian of the children.
Cite as 2016 Ark. App. 266
part that, if the court finds that there is imminent danger to the life or health of the
incapacitated person and that this requires the immediate appointment of a guardian, the court
may, with or without notice, appoint a temporary guardian for the incapacitated person for
a specified period, which period, including all extensions, shall not exceed ninety (90) days,
and the court may remove or discharge him or her or terminate the guardianship.
Subsection (a)(2)(A) provides that, if the incapacitated person is a minor, the initial
period for the appointment of a temporary guardian shall be for a period not to exceed ninety
(90) days. Subsection (a)(2)(B) provides that, on or before the expiration of the ninety-day
period, the court may extend the temporary guardianship for an additional period not to
exceed ninety (90) days if the court finds after a hearing on the merits that there remains
imminent danger to the life or health of the minor if the temporary guardianship is not
extended.
Arkansas Code Annotated section 28-65-202(a)(1) provides that the venue for the
appointment of a guardian shall be in the county of this state where the incapacitated person
is domiciled. See, e.g., Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000) (venue was
proper in county where child resided, rather than where the child resided after a temporary
guardianship had been obtained). Our supreme court has held that, once a final order has been
entered and an appeal taken, the question of venue, once put in issue, is not lost by
continuing through a trial of the matter. Id.
II. Procedural History
On November 25, 2013, the Hoods filed a petition for emergency guardianship of
2
Cite as 2016 Ark. App. 266
C.H. and H.H. and attached an affidavit averring that Lindsey was addicted to prescription
drugs and that both Lindsey and the Hoods’ son, John, used the drug ICE; that Lindsey had
spent $800 in EBT (electronic benefits transfer) funds within a couple of days; that a
“homemade pipe” was found under Lindsey’s side of the bed; that Lindsey and John had lost
their jobs and were making ends meet by shoplifting; that both Lindsey and John had been
arrested in connection with shoplifting; that the children had stopped attending Civitan
School where they received therapy; and that C.H. had been found wandering unclothed near
Congo Road.2
The trial court granted the Hoods’ petition the following day and scheduled a hearing
for December 4, 2013. On December 3, 2013, Lindsey filed a motion for continuance, which
was granted. The trial court rescheduled the hearing for December 17, 2013. On December
20, 2013, an “Agreed Order of Continuance” was entered stating, “This case shall be
continued until the parties reset it for a full trial. The guardianship shall continue through the
next trial.” The order also awarded visitation with the children to Fields.
On May 15, 2014, the Hoods filed a motion to set aside the agreed order because they
alleged that Fields was permitting Lindsey to care for the children while she (the grandmother)
worked twelve-hour shifts as a nurse. Attached to their motion was a document from the
Arkansas State Police’s Crimes Against Children Division in which the investigative agency
found an allegation of suspected child maltreatment—“poison/noxious substance”—true with
respect to C.H. and placed Lindsey’s and John’s names on the Child Maltreatment Central
2
The children’s father, John Hood, is not a party to this appeal.
3
Cite as 2016 Ark. App. 266
Registry. There is no indication whether the parents contested the agency’s determination.
Moreover, no hearing was ever held on the motion to set aside.
On April 8, 2015, Lindsey filed an “Objection and Motion to Set Aside Order Filed
November 26, 2013, for Dismissal or Termination of the ‘Emergency’ Temporary
Guardianship in the Hoods, and for Return of the Custody of the Children to Lindsey Nicole
Hood, Mother.” Following a hearing with only arguments by the attorneys, the trial court
entered an order on April 21, 2015, denying Lindsey’s motion in part and continuing the case
for a hearing on Lindsey’s motion to set aside the guardianship. Lindsey filed a timely notice
of appeal from that order.3
III. Discussion
Lindsey argues that the trial court had no authority or jurisdiction to continue the
guardianship in the Hoods after ninety days had passed. We agree that the trial court acted
contrary to the statute. The basic rule of statutory construction is to give effect to the intent
of the legislature. State v. L.P., 369 Ark. 21, 250 S.W.3d 248 (2007). Where the language of
a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning
of the language used. Id. In considering the meaning of a statute, we construe it just as it reads,
giving the words their ordinary and usually accepted meaning in common language. Id.
A plain reading of Ark. Code Ann. § 28-65-218(a)(2) provides that a temporary
guardianship may last only up to ninety days, unless it is determined after a hearing that it is
3
An appeal may be taken from orders in probate cases with a few exceptions not
applicable here. Ark. R. App. P.–Civ. 2(a)(12) (2015).
4
Cite as 2016 Ark. App. 266
necessary to extend it for another period not to exceed ninety days. The November 2013
temporary guardianship expired at the end of ninety days. Even if the “Agreed Order of
Continuance” could be considered an extension of that temporary guardianship, the extension
or continuance could not be granted without a hearing and was only valid for up to another
ninety days. In Becker v. Rogers, 235 Ark. 603, 361 S.W.2d 262 (1962), Rogers had
continuously served as a temporary guardian for an incompetent person for 360 days and was
reappointed for another ninety-day period. Our supreme court reversed, holding that the
appointment was invalid because it was clear that the legislature intended to prohibit the
appointment of a temporary guardian, or the retention of an individual as a temporary
guardian, for more than ninety days. The court held that the appointment was also invalid
because temporary guardianships were designed to “take care of urgent and emergent matters
that have arisen and where prompt action is essential before the legal requirements for the
appointment of a permanent guardian can be met.” Becker, 235 Ark. at 608, 361 S.W.2d at
265. Here, although we are dealing with the statute as it pertains to minors, the Hoods’
temporary guardianship has lasted far beyond ninety days, and no hearing to determine the
propriety of an extension—whether an emergency still exists—has been held. The trial court
thus erred in continuing the temporary guardianship indefinitely.
We further agree with Lindsey’s alternative argument that, even if she had consented
to the continuation of a guardianship, once her consent was withdrawn in April 2015, the
guardianship should have automatically ended because she has not been found to be an unfit
parent. For this proposition, Lindsey relies on the Arkansas Supreme Court’s decision in
5
Cite as 2016 Ark. App. 266
Matter of Guardianship of W.L., 2015 Ark. 289, 467 S.W.3d 129. Citing language from In re
Guardianship of S.H. (1), 2012 Ark. 245, at 14, 409 S.W.3d 307, 316, our supreme court
noted that “parents who have not been found unfit do not relinquish their fundamental liberty
interest in raising their children by consenting to a guardianship.” W.L., 2015 Ark. 289, at
6, 467 S.W.3d at 133. In W.L., our supreme court declared that
[b]y petitioning to terminate the guardianship and revoking consent, the fit parent,
who has the child’s best interest at heart, informs the court that the guardianship is no
longer necessary. That is sufficient to meet the statutory requirement where the court
“may” terminate the guardianship. In other words, a guardianship is no longer
necessary—per the statute—when a fit parent revokes consent. The fit parent does not
have to prove anything else.
Id. at 8, 467 S.W.3d at 133–34.4
There has been no evidentiary hearing, much less one adjudicating Lindsey unfit as a
parent. Pursuant to W.L., because she has not been found unfit, she is fit, and her decision
regarding her children controls. “[A] fit parent’s decision regarding his or her children is
conclusive.” Id. at 8, 467 S.W.3d at 134. The trial court is afforded no discretion in the
matter. This court is bound to follow precedent set by the Arkansas Supreme Court. Sanderson
v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003). Accordingly, we reverse.
IV. Conclusion
We reverse the trial court for the reasons discussed herein. Our holding, of course,
4
Arkansas Code Annotated section 28-65-401(b)(3) (Supp. 2015) provides that a
guardianship “may be terminated by court order after such notice as the court may require
if, for any other reason, the guardianship is no longer necessary or for the best interest of the
ward.”
6
Cite as 2016 Ark. App. 266
does not prevent the Hoods from filing a proper petition for guardianship, if necessary, and
requesting a hearing.
Reversed.
HARRISON and KINARD, JJ., agree.
Oscar Hirby and Robert S. Tschiemer, for appellant.
No response.
7