                                 Cite as 2016 Ark. App. 598


                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                         CV-16-120
                                       No.

                                                 OPINION DELIVERED: DECEMBER 14, 2016
PAMELA DAWN REAGAN
                                APPELLANT
                                                 APPEAL FROM THE HOWARD
                                                 COUNTY CIRCUIT COURT
V.                                               [NO. 31PR-2014-64-1]

                                                 HONORABLE TOM COOPER,
JULIE DODSON AND DENNIS                          JUDGE
DODSON
                      APPELLEES AFFIRMED




                          ROBERT J. GLADWIN, Chief Judge

        Appellant Pamela Reagan appeals the November 2, 2015 order by the Howard

 County Circuit Court granting guardianship over her three minor children to Pamela’s

 mother and stepfather, appellees Julie Dodson and Dennis Dodson. Pamela is not

 challenging the facts supporting the trial court’s decision finding her unfit and placing her

 three children with the Dodsons; rather, she argues that the trial court erred in denying her

 motion to dismiss the guardianship petition and motion for directed verdict, which were

 based on two facts: (a) the original guardianship petition was unsigned; and (b) the Dodsons,

 as petitioners, never served or gave notice to Jeremy Pumphrey, the biological father of

 Pamela’s children. She also argues that the trial court erred when it granted guardianship to

 the Dodsons without determining whether Pumphrey was unfit. We affirm.
                                  Cite as 2016 Ark. App. 598

       Pamela is the mother of C.P., age six; C.P., age three, and K.P., age two. The

Dodsons originally were represented by Gregory Vardaman, but later substituted Jana

Bradford as counsel. Pamela was originally represented by attorney Darryl Taylor. She too

later substituted counsel, eventually being represented by Tim Parker. The petitions for

guardianship allege that Pumphrey is the biological father of all three children, and his name

appears on their birth certificates.

       On November 26, 2014, the Dodsons filed a verified ex parte petition for emergency

guardianship of the person and estate, alleging that Pamela’s three children were in danger

due to her drug use as evidenced by a meth pipe being removed from the hands of Pamela’s

then ten-month old baby and Pamela’s intention to reunite with Pumphrey, the alleged

putative father, who until recently had been incarcerated. The trial judge signed the

emergency ex-parte temporary guardianship over the children to the petitioners the same

day. Thereafter, the temporary guardianship was extended numerous times, and twice upon

the agreement of the parties.

       A signed amended petition for guardianship was filed by new counsel on September

10, 2015, and on September 29, 2015, a hearing was conducted in the Howard County

Circuit Court. Pamela’s attorney, Parker, after reviewing the court file and prior to

testimony being taken, called to the trial court’s attention in chambers, for the first time

almost a year into the case, the fact that the original emergency petition for guardianship

had not been signed prior to filing. Immediately before the final hearing began, Parker orally

moved to dismiss the proceedings because the original emergency petition, although verified

by Mrs. Dodson, had not been signed by Vardaman. He argued that it was a void pleading


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and that the trial court had no jurisdiction. The trial court inquired as to whether Parker

had any case law involving children where the trial court was found not to have jurisdiction

requiring the case to be dismissed, and Parker replied that he did not. This deficiency, as

well as Pamela’s objections and motion, were put on the record in the courtroom shortly

afterward with Pamela’s attorney arguing the same grounds for dismissal as well as that the

children’s biological father, Pumphrey, had not been served and had received no notice of

the hearings in the case.

       The trial court allowed the Dodsons’ counsel, Bradford, to respond, and she

acknowledged the unsigned emergency petition filed with the trial court on November 26,

2014, that was verified by her clients. Bradford explained that since that time period, there

had been two temporary orders entered and that Pamela had filed a motion to continue the

temporary guardianship pending completion of discovery on or about June 29, 2015.

Bradford noted that previously there had been no objection to the fact that the attorney did

not sign the original verified petition.

       Bradford also explained that, since taking over as counsel, she had filed a signed

amended petition on the guardianship, along with an alternative motion for grandparents’

visitation rights, none of which had been responded to by Pamela. She stated that two

motions for drug screens had been filed, one for Pamela and one for Pumphrey, the putative

father, and neither of those had been responded to by Pamela. Parker responded that because

Pumphrey had not been served, he would not be required to respond to it. Parker stated

that he did not think he had ever consented to any time extensions.




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       In denying the motion to dismiss, the trial court ruled that, with respect to the

petition not being signed, in this situation where the grandparents had the children in their

care and the mother was there, the court could not imagine that it would not be in the best

interest of the children for it to hear the case and make a determination on the petition.

       At the conclusion of the Dodsons’ case and at the conclusion of the hearing, Parker

moved for directed verdict on the same basis that had been raised before—that the original

petition had not been signed, which rendered the matter a nullity. The trial court again

denied the motion and the renewal.

       The trial court granted the petition for guardianship on November 2, 2015. The

guardianship order included findings that Pamela was unfit and that a guardianship was

necessary for the children based on overwhelming evidence, including Pamela’s drug use,

the children’s malnutrition, and one child’s broken arm without evidence that medical

treatment was provided. According to the order, Pamela did not visit the children from the

time of the ex parte hearing and the temporary hearing until the final hearing. Pamela was

convicted of possession of drug paraphernalia subsequent to the filing of the petition for

guardianship. The trial court made a finding that Pamela continued to associate with the

alleged putative father, Pumphrey, a convicted felon. In the order, the trial court did not

address Pumphrey or find that he was unfit. Pamela filed her notice of appeal on November

13, 2015.

            I. Denial of Pamela’s Motions Based on Original Petition Being Unsigned

       The Arkansas Supreme Court has stated that when it reviews motions to dismiss

based upon questions of law, it conducts a de novo review. Henry v. Continental Cas. Co.,


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2011 Ark. 224, 381 S.W.3d 802. Similarly, Arkansas’ appellate courts conduct a de novo

review of a trial court’s construction of a court rule. Sturdivant v. Sturdivant, 367 Ark. 514,

241 S.W.3d 740 (2006).

       Pamela argues that Arkansas courts generally require complaints, petitions, and writs

filed therein to be signed, relying on Carrington & Pryor v. Hamilton, 3 Ark. 416, 418 (1841),

where our supreme court explained that an unsigned declaration is a mere nullity that cannot

form the commencement of an action. Pamela notes that Arkansas continues to follow this

holding through our Rule 11 of the Arkansas Rules of Civil Procedure (2016), which

provides:

       Every pleading, motion, and other paper of a party represented by an attorney shall
       be signed by at least one attorney of record in his individual name, whose address
       shall be stated. A party who is not represented by an attorney shall sign his pleading,
       motion or other paper and state his address and telephone number, if any.

Rule 11 also states that “if a pleading, motion or other paper is not signed, it shall be stricken

unless it is signed promptly after the omission is called to the attention of the pleader or

movant.”

       It is undisputed that this is a guardianship proceeding, a probate case which has been

deemed a “Special Proceeding” within the meaning of Arkansas Rule of Civil Procedure

81 (2016). Accordingly, the Arkansas Rules of Civil Procedure do not apply in instances

where the statute governing the proceedings creates a different procedure. See In Re W.L.,

2015 Ark. 289, 467 S.W.3d 129. Although Pamela submits that nowhere in the guardianship

statutes is there a provision excusing the signature of a litigant or his attorney from the

original petition, the procedure for preparing a petition provided in Arkansas Code

Annotated section 28-65-207 (Repl. 2012) likewise does not provide that an attorney must

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sign the petition, or what should happen if a pleading is not signed. It does not address the

signature requirement at all.

       Guardianship proceedings, as special proceedings, have additional built-in protections

above and beyond the Rule 11 signature requirement. When emergency orders are entered

in guardianships, a temporary hearing is required to be held within three days. Such a

hearing was held here, and although not within the three-day period, the delay was not

objected to before the trial court. The trial court heard testimony at that temporary hearing

and continued the guardianship. Then, two weeks later, the parties again appeared before

the trial court, and by agreement continued the guardianship. We hold that the matter was

in compliance with the current added-statutory safeguards.

       Even where Rule 11 requires a pleading to be signed by at least one attorney of

record, it also provides steps to be taken if a party fails to sign a pleading. Such steps include

that an attorney be given an opportunity to correct the problem upon notice of his failure

to sign a pleading. Rule 11 provides for possible sanctions when an attorney does not sign

a pleading after notice, and being ordered to do so does not require an automatic dismissal

of a pleading as argued by Pamela.

       It is undisputed the signature issue was not raised until immediately prior to the

beginning of the September 29, 2015 hearing held to address the amended petition for

guardianship that was filed on September 10, 2015. The trial court could have, and likely

would have, required the pleading to be signed had this technical error been pointed out.

Instead, Pamela, through her then attorney, filed a motion on January 28, 2015, to dismiss

the petition for emergency guardianship, quash the summons issued herein, and to set aside


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the temporary order. She raised several issues in that motion, but she did not raise any

objection about the unsigned petition. The parties also appeared for a hearing on that date.

The record is void of any indication that Pamela raised any issue about the Dodsons’

attorney’s failure to sign the original pleading at that hearing. It was ordered that they

schedule a final hearing within ninety days. The parties entered into an agreed order

whereby it was reflected that they continued the temporary guardianship, were attempting

to consummate an agreement, and they waived time limits, and they agreed that the agreed

order would expire within ninety days from April 7, 2015, if no final hearing was held.

       Parker entered his appearance in the case for Pamela on June 8, 2015. On June 29,

2015, he filed a motion seeking that the temporary order continue, allowing him time to

prepare for a hearing. There was no mention of Vardaman’s failure to sign the original

petition. On July 1, 2015, the parties entered into a second agreed order, which continued

the temporary guardianship.

       Vardaman withdrew as counsel for the Dodsons on August 4, 2015, and an order

was entered the same day. The Dodsons’ new counsel, Bradford, entered her appearance on

August 7, 2015. The Dodsons then filed a motion to extend temporary guardianship on

August 7, 2015, and filed an emergency ex parte motion to extend temporary guardianship

and request for emergency hearing on August 11, 2015. An ex parte temporary order to

extend temporary guardianship was entered on August 12, 2015, setting the matter for

hearing on September 29, 2015. At some point in the case, motions for drug screens for

both Pamela and Pumphrey were filed.




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       The Dodsons filed an amended petition for guardianship of the person and estate

and, alternatively, petition for grandparents’ visitation rights on September 10, 2015. The

amended petition was properly signed by Bradford, and the final hearing was held on

September 29, 2015.

       We hold that it was unnecessary for the trial court to follow the remedial procedure

set out in Rule 11 in this particular case because at the time of the final hearing the issues

related to the facts pled in the unsigned pleading were properly before the trial court and

were tried pursuant to the subsequently signed amended petition for guardianship. The

failure to sign the original petition appears to have been missed by everyone involved until

raised by Pamela at the final hearing. Two separate hearings were held for the trial court to

verify a basis in fact to continue the guardianship—on January 20, 2015, when the trial court

heard testimony from the Dodsons, and again on January 28, 2015, when the parties agreed

that the temporary order of guardianship would be continued. The parties, including

Pamela, attended at least one of the hearings with counsel. The oversight was remedied by

the filing of the signed amended petition. See Hackleton v. Malloy, 364 Ark. 469, 221 S.W.3d

353 (2006). Accordingly, we hold that the trial court did not err.

        II. Denial of Pamela’s Motions Based on Neither Service nor Notice to Pumphrey

       This issue turns on our court’s interpretation of the Arkansas guardianship statutes

and the issue of notice. Arkansas appellate courts review issues of statutory construction de

novo as it is for the reviewing court to decide what a statute means. GGNSC Holdings, LLC

v. Lamb by and Through Williams, 2016 Ark. 101, 487 S.W.3d 348. The basic rule of statutory

construction is to give effect to the intent of the legislature. Id. Our supreme court has stated


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that when the language of the statute in question is plain and unambiguous and conveys a

clear and definite meaning, there is no occasion to resort to rules of statutory construction.

Id.

       Arkansas Code Annotated section 28-65-104 (Supp. 2015) provides that persons

under the age of eighteen years of age whose disabilities have not been removed are

“incapacitated persons” as a matter of law. Section 28-65-204 (Repl. 2012), entitled

“Preferences,” states that the parents of an unmarried minor, or either of them, if qualified

and suitable shall be preferred over all others for appointment as guardian of the person.

Section 28-65-205 (Repl. 2012) provides that the petition for guardianship shall state, inter

alia, the names and addresses of the persons, most closely related to the incapacitated person

by blood or marriage. Section 28-65-207(b)(2) (Repl. 2012), entitled “Notice of Hearing

for appointment,” provides that “before the court shall appoint a guardian . . . notice of the hearing

of the application for appointment of the guardian shall be served upon the following . . . (2) The

parents of the alleged incapacitated person, if the alleged incapacitated person is a minor…”

(Emphasis added.)

       Our supreme court characterized the rights of natural parents in In Re S.H., 2012

Ark. 245, at 8–9, 409 S.W.3d 307, 313 (S.H. 1), holding that “parents have a fundamental

liberty interest in the care, control, and custody of their children.” See also Troxel v. Granville,

530 U.S. 57 (2000). In Stanley v. Illinois, 405 U.S. 645, 651 (1972), the Supreme Court held

that fathers of children born out of wedlock enjoyed the same fundamental due-process

rights under the Fourteenth Amendment to the U.S. Constitution to their children as do

married mothers of children.


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       Based on the holding in Stanley, Pamela suggests that under the Due Process Clause

of the Fourteenth Amendment, Pumphrey, as the father of the minor children born out of

wedlock, is entitled to a hearing on his fitness as a parent before his children may be taken

from him by a guardianship order. Id. Here Pumphrey never was served with either a copy

of the guardianship petition or notice of any hearings, and there is also nothing in the record

where the trial court found Pumphrey to be unfit.

       Constitutional rights, including the guarantee of due process, are personal in nature

and may not be asserted by a third party. See Kidd v. Ark. Dep’t of Human Servs., 2016 Ark.

App. 450 (holding that a custodial parent lacked standing to raise the issue of lack of proper

service on noncustodial parents in an adjudication proceeding). Arkansas appellate courts

have consistently held that one party to an action lacks standing to raise an argument on

behalf of a party that has not appealed. See Arnold v. State, 2011 Ark. 395, 384 S.W.3d 488;

Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007); Matter of Adoption of B.A.B., 40

Ark. App. 86, 842 S.W.2d 68 (1992). A very narrow exception is explained in Matter of

Adoption of B.A.B., 40 Ark. App. at 88–89, 842 S.W.2d at 70, where the issue presented to

the court would not otherwise be susceptible to judicial review and it appears that the third

party is sufficiently interested in the outcome that the rights of the other party would be

vigorously asserted and, thus adequately represented. That exception does not apply here;

therefore we decline to recognize standing by Pamela on behalf of Pumphrey.

            III. Appointment of Guardian Where Pumphrey Not Found to be Unfit

       The same standard of review set forth in the previous point, de novo, applies here as

well. See GGNSC Holdings, LLC, supra. Fathers, including fathers of children born out of


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wedlock, have fundamental rights under the Fourteenth Amendment to make decisions

concerning the care, custody, and control of their children. Stanley, supra.     Because

Pumphrey was never found by the trial court to be unfit, Pamela argues that it was clear

error for the trial court to grant the guardianship. She maintains that constitutional

arguments aside, under the guardianship statutes, specifically section 28-65-204, Pumphrey

enjoyed a statutory preference for appointment as guardian of his children. Given the federal

case law characterizing the fundamental rights of parents to raise their children as they see

fit, it is Pamela’s position that the parents of minor children, unless first found to be unfit,

enjoy virtually a conclusive preference. See Stanley, supra. She submits that, absent a finding

by the trial court that both parents of the minor children were unfit, it was clear legal error

for the trial court to appoint a legal guardian over their children, thus depriving the parents

of their fundamental constitutional rights.

       As in her previous point on appeal, here Pamela attempts to assert the rights of a third

party who has not appealed. Because Pamela lacks standing to raise this issue on behalf of

another party, we decline to address it. See Kidd, supra; Seymour, supra.

       Affirmed.

       KINARD and HIXSON, JJ., agree.

       Parker Law Firm, by: Tim S. Parker, for appellant.

       Tucker Law Firm, by: Benny M. Tucker, for appellees.




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