                                Cite as 2015 Ark. App. 38

                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                     No. CV-14-139


IN THE MATTER OF THE                             Opinion Delivered January 28, 2015
GUARDIANSHIP OF W.L., A MINOR
                                                 APPEAL FROM THE LOGAN
DAVID LINEHAM                                    COUNTY CIRCUIT COURT
                              APPELLANT          [NO. 42P PR-2009-98]

V.                                               HONORABLE DAVID H.
                                                 MCCORMICK, JUDGE

SARAH RACHEL HYDE ET AL.                         AFFIRMED
                    APPELLEES



                              RITA W. GRUBER, Judge

       David Lineham appeals from the circuit court’s order denying his petition to terminate

a guardianship over his daughter, W.L. David argues on appeal that the circuit court clearly

erred in refusing to terminate the guardianship and in allowing W.L.’s maternal grandparents

to continue as guardians. We affirm the circuit court’s order.

       W.L. was born on March 31, 2008, to David Lineham and Sarah Hyde in Virginia.

At the time, they were living with David’s parents in Mount Vernon, Virginia. In July 2009,

they moved into a nearby apartment in Alexandria, Virginia. W.L. also spent a considerable

amount of time with Sarah’s parents, appellees Anna and Dennis Hyde, who both lived and

worked in the Washington D.C. area but also maintained a residence on their farm in Logan

County, Arkansas.

       The relationship between Sarah and David was tumultuous. Although there is some
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dispute regarding the reasons a guardianship was sought, David and Sarah both signed

consents allowing appellees to have a guardianship over W.L. on September 25, 2009. David

and Sarah permanently ended their relationship on October 31, 2009, and the order granting

the guardianship was entered on December 21, 2009. Shortly thereafter, appellees moved

with W.L. to their farm in Logan County, where W.L. has continued to live with them.

       On September 25, 2010, David married Danielle. On December 27, 2010, David filed

a petition to terminate the guardianship over W.L. The circuit court held a hearing on

January 25, 2012, and entered an order denying David’s petition on April 9, 2012.1 In its

order, the court found that the guardianship continued to be necessary and that it was in the

best interest of W.L. for appellees to remain as guardians. The court specifically stated that

the guardianship was necessary to “maintain the normal parental responsibilities such as

providing food, clothing and financial support, which [David] has not provided.” The court

also found that the evidence demonstrated “a lack of a meaningful relationship” between

David and W.L. or between David’s new wife Danielle and W.L. Testimony indicated that,

as of the date of the hearing, David had visited W.L. in Arkansas only one time since

initiation of the guardianship in 2009 and had provided no financial support for W.L. The

circuit court awarded standard visitation to David. We refer to this order as the “first order.”

       David did not appeal from the first order denying his petition, but he immediately

began exercising visitation, visiting W.L. in Arkansas on weekends and exercising his six-



       1
        After the hearing but before the court entered its order, Sarah filed a motion to
intervene, which the circuit court denied.

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week summer visitation with W.L. in Virginia. Evidence showed that David spent money

traveling to Arkansas to visit W.L. and purchasing clothes and toys for her. He did not,

however, provide any direct financial support to appellees. In October 2012, Sarah and

David filed competing petitions to terminate the guardianship and in December 2012, they

filed competing petitions for custody in the event the court terminated the guardianship. The

petitions for custody were consolidated into the guardianship. The court held a hearing in

August 2013. At the time of the hearing, Sarah was living in a trailer on her parents’ farm

with her new husband and their two-year-old son. David and Danielle lived in an apartment

in Virginia.

       The court continued the guardianship, making the following specific findings:

       7.     This court finds from its previous ruling that David Lineham was determined
       to be unfit, although specific wording to that effect was not used. Sarah Hyde has not
       had her fitness addressed in any prior proceedings.

       8.      The Court places upon both biological parents a duty to put forth proof that
       the conditions that necessitated the guardianship had been removed. If successful, the
       Guardians would then have the burden of rebutting the presumption that termination
       is in the minor child’s best interest.

       9.     While the Court finds that both biological parents failed to present proof at the
       hearing on August 14th and 16th, 2013 as to what the conditions were at the time the
       guardianship was established, the Court will still examine the evidence to determine
       whether terminating the guardianship is in the best interest of the Ward.

       10.     After examination of the pleadings, documents, testimony, and all available
       evidence, the Court finds that Sarah Hyde is unfit and that it would not be in the
       Ward’s best interest to terminate the guardianship and return the Ward to Sarah
       Hyde. Specific reasons supporting this determination may be found in the Court’s
       letter opinion dated October 2, 2013, which was sent to all parties by facsimile
       transmission.

       11.     After examination of the pleadings, documents, testimony, and all available

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       evidence, the Court finds that David Lineham remains unfit as a parent. Specific
       reasons supporting this determination may be found in the Court’s letter opinion
       dated October 2, 2013 which was sent to all parties by facsimile transmission.

       12.     The Ward is 5½ years old and has lived with the Guardians since she was 5
       months old. The Court believes that the testimony justifies the finding that
       termination of the guardianship would not be in the Ward’s bests interest and that the
       guardianship should remain in place. Specific reasons supporting this determination
       may be found in the Court’s letter opinion dated October 2, 2013 which was sent to
       all parties by facsimile transmission.

       The court then dismissed David’s and Sarah’s petitions to terminate, ordered both to

pay child support, continued David’s standard visitation with W.L., and incorporated its

attached letter opinion by reference. In its letter opinion, the court recited the applicable law

and burdens of proof found in our supreme court’s opinion In re Guardianship of S.H., 2012

Ark. 245, 409 S.W.3d 307.

       Our appellate courts review guardianship proceedings de novo, but we will not

reverse a finding of fact by the circuit court unless it is clearly erroneous. Furr v. James, 2013

Ark. App. 181, 427 S.W.3d 94. 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. Id. When reviewing the proceedings, we give due regard to the

opportunity and superior position of the trial court to determine the credibility of the

witnesses. Id. Moreover, in cases involving children, we afford even more deference to the

trial court’s findings because there is no other case in which the superior position, ability, and

opportunity of the court to observe the parties carries a greater weight than one involving

the custody of minor children. Ford v. Ford, 347 Ark. 485, 491, 65 S.W.3d 432, 436 (2002).

       On appeal, David argues that the circuit court’s order refusing to terminate the

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guardianship and allowing W.L.’s maternal grandparents to continue as guardians rather than

allowing him, W.L.’s father, to have custody is clearly erroneous. He specifically challenges

the court’s determination that it had found him to be unfit in its first order; that he failed to

present sufficient evidence that the guardianship was no longer necessary; and that appellees

presented sufficient evidence to overcome the presumption that termination of the

guardianship was in W.L.’s best interest.

       We turn first to the governing law. Arkansas Code Annotated section 28-65-401(b)(3)

(Supp. 2013) 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.” In applying this

statute, our supreme court has held that fit parents do not relinquish their fundamental liberty

interest in raising their children by consenting to a guardianship and, thus, are entitled to the

Troxel presumption in a proceeding to terminate that guardianship.2 In re Guardianship of

S.H., 2012 Ark. 245, at 14, 409 S.W.3d 307, 316. Specifically, the court held as follows:

       A natural parent who has not been deemed unfit is entitled to the presumption that
       he or she is acting in the child’s best interest, even after consenting to a guardianship.
       Therefore, when 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.

Id. at 15, 409 S.W.3d at 316–17.

       In order for the presumption to apply, a parent must not have been deemed unfit.


       2
        See Troxel v. Granville, 530 U.S. 57, 68 (2000) (recognizing presumption that a fit
parent acts in the best interest of his or her child).

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David argues that the circuit court erred in finding that he had been found unfit in the

court’s first order. Although the court stated that it had previously found David to be unfit

in its first order, the court did not rely on that finding and instead applied the law set forth

in In re Guardianship of S.H. as if David were a fit parent. Indeed, in its letter opinion, the

court reasoned that since it had not made a fitness determination regarding Sarah in its

previous order,

       the best way to examine the evidence in this case is to give both biological parents the
       Troxel presumption that by seeking to terminate the guardianship of [W.L.] that they
       are acting in the best interest of the child. This places upon the biological parents a
       duty to then put forth proof that the conditions that necessitated the guardianship
       have been removed. Then, if that burden of proof is met, the guardians have the
       burden of rebutting the presumption that termination is in the child’s best interest.
       Finally, if it is determined that the guardianship is no longer necessary, the court must
       address the issue of custody as between Sarah Hyde and David Lineham[.]

The court continued in its letter opinion, finding that neither Sarah nor David presented

proof as to what the conditions were at the time the guardianship was established and thus

they failed to put forth proof that the conditions necessitating the guardianship had been

removed. Given the court’s examination of the evidence treating David as a fit parent and

its consequent decision to allow him to put forth evidence that the guardianship was no

longer necessary, its determination that it had previously found David unfit in its first order

does not cause its denial of David’s petition to be clearly erroneous.

       David next argues that the circuit court erred in finding that he did not put forth

sufficient evidence that the guardianship was no longer necessary. In support of his argument,

he points to testimony of one of the guardians, Dennis, who thought the conditions

necessitating the guardianship had been removed. Dennis’s testimony was made in response

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to whether he thought his daughter, Sarah, was ready to parent W.L. Dennis did not oppose

terminating the guardianship if Sarah were to be awarded custody. But he made it clear that

he had concerns with David and thought that the guardianship was still necessary with regard

to David. Anna testified similarly. Although there was no testimony regarding precisely what

conditions necessitated the guardianship, the petition for guardianship stated with regard to

David that “the father of the minor child does not provide support or income to the mother”

and that the mother was without suitable income to support herself or the child. The petition

also stated that the child did not have regular medical care or a “consistent and stable home,

nourishment, and maintenance.”

       David testified that he could provide and was providing medical insurance and that

his income was sufficient to support W.L. But the court noted that, in spite of his income,

David was not providing and had never provided any direct financial support to the guardians

for W.L. Despite appellees’ request that he help them with some of W.L.’s medical bills,

David provided no funds at all. David argues that no court order required him to pay child

support, apparently indicating the court was wrong to consider his failure to support W.L.

in its decision. The law in Arkansas has long been that a parent has a legal duty to support

his child, regardless of the existence of a support order. Fonken v. Fonken, 334 Ark. 637, 642,

976 S.W.2d 952, 954 (1998); see also McGee v. McGee, 100 Ark. App. 1, 6, 262 S.W.3d 622,

626 (2007) (stating that child support is an obligation owed to the child and, even in the

absence of a court order requiring a parent to support his or her minor child, a parent

continues to have a legal and moral duty to do so). We hold that the circuit court’s finding


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on the issue of the continuing necessity for the guardianship is not clearly erroneous.

       In spite of the circuit court’s failure to find that the parties put forth sufficient

evidence that the guardianship was no longer necessary, the court still examined the evidence

to determine whether terminating the guardianship was in W.L.’s best interest. David argues

that the court’s finding that termination of the guardianship was not in W.L.’s best interest

was clearly erroneous. In examining best interest, the court recognized that David had

exercised his visitation during the year and a half before the hearing and that he had provided

clothing and toys to W.L. The court also noted that he had married and that he was currently

earning at least $5,000 per month. But the court was troubled by David’s seeming inability

to communicate or interact favorably with Sarah and W.L.’s guardians. The court pointed

to testimony that when David attended W.L.’s kindergarten graduation, he and his mother

refused to sit in seats with the guardians and Sarah and chose to remain in the back of the

room. The court also noted that David’s wife, Danielle, admitted to calling DHS on several

occasions to make reports that were later determined to be unsubstantiated. Danielle also

admitted to alerting authorities that Dennis was harboring a fugitive (Sarah) and making an

anonymous call to Dennis’s employer relaying the same information. Evidence at trial

demonstrated that David blocked phone calls from Sarah and appellees when W.L. was in

his custody. The court was troubled by another incident in which David had obtained

medical care for W.L. while she was in his custody but he refused to respond to repeated

requests from appellees to provide the medical records for W.L.’s medical file. He gave no

reason for his refusal other than that he simply had not responded. Finally, the court noted


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that there was a distinct difference in the attitude of David and the other parties while

testifying. David seemed disinterested in anything Sarah had to say, and appellees testified that

David was dismissive of them and would not communicate with them concerning issues

affecting W.L. Finally, the court was troubled by an incident over Christmas visitation in

which David lied to appellees regarding whether he was driving or flying with W.L. to

Virginia. Because of bad weather, David drove with W.L. to Virginia, but he told W.L. to

lie to appellees about it. Despite appellees’ repeated phone calls, David refused to accept or

return any phone calls from them for several days during this time. Although David denied

these accusations, the court found Dennis’s testimony more credible.

       The court also recognized that W.L. was five-and-one-half years old and had lived

with appellees since she was five months old. The court found that it was not in W.L.’s best

interest to terminate the guardianship. Credibility of the witnesses is a matter for the circuit

court and, in cases involving children, we afford even more deference to the trial court’s

findings because there is no other case in which the superior position, ability, and

opportunity of the court to observe the parties carry a greater weight than one involving the

custody of minor children. Ford, 347 Ark. at 491, 65 S.W.3d at 436. Having reviewing the

record, we hold that the circuit court’s decision was not clearly erroneous.

       Affirmed.

       KINARD and BROWN, JJ., agree.

       Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for
appellant.
       Clark & Murdoch, P.A., by: Timothy W. Murdoch, for appellee.


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