                                     2014 Ark. App. 692



                    ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CV-14-511

JANET KAYE AUTRY                                 Opinion Delivered: December 3, 2014
                               APPELLANT
                                                 APPEAL FROM THE LONOKE COUNTY
V.                                               CIRCUIT COURT
                                                 [NO.PR-13-246]
PAM BECKHAM AND DON
BECKHAM                      HONORABLE WILL FELAND, JUDGE
                   APPELLEES
                             REVERSED



                            WAYMOND M. BROWN, Judge

         Appellant appeals from the circuit court’s February 20, 2014 order appointing

appellees as guardians of Louise Alma Shepherd a/k/a Louise Whaley. On appeal,

appellant argues that the circuit court erred in (1) failing to obtain a professional evaluation

prior to the court hearing for the appointment of a guardian; (2) allowing appellees to

intervene in the guardianship of Ms. Whaley; and (3) failing to take into consideration the

order of preference in appointing a guardian as set out in Arkansas Code Annotated

section 28-65-204.1 We reverse.

         Louise Whaley, the proposed ward, was 91 years old at the beginning of this case

and had been living alone for some time in a house on property that she owned. Her

estate, including three or four rental properties, was worth somewhere between

$1,000,000 and $1,500,000. She had two children, both sons; both are deceased. Appellant


1
    (Repl. 2012).
                                   2014 Ark. App. 692


is the daughter of one of Ms. Whaley’s sons. In June or July of 2013, appellant, along with

the rest of the family, became concerned about Ms. Whaley’s health and her ability to take

care of her basic needs.

       On July 29, 2013, appellant petitioned the court for ex parte temporary

guardianship and permanent guardianship over Ms. Whaley’s person and estate. The

petition was accompanied by an unverified letter from Dr. Thirumal Reddy Dubakka

from the Longevity Center at St. Vincent Health System stating that it was his opinion

that Ms. Whaley “requires assistance for all medical, business and financial matters.” All

family members required to have notice of appellant’s petition—Ms. Whaley’s other five

grandchildren—were notified of her petition, and each filed a waiver of notice in which

they consented to appellant being appointed as Ms. Whaley’s permanent guardian. An

order appointing appellant as the temporary guardian of Ms. Whaley’s person and estate

was entered on August 6, 2013.

       On September 23, 2013, Pam and Don Beckham, neighbors of Ms. Whaley,

claiming to be “close acquaintances” of Ms. Whaley, filed a motion for leave to intervene

along with a motion for an expedited hearing on that motion.2 The court granted the

motion to intervene and noted that appellant and appellees had waived the ninety-day

hearing requirement in an order entered on October 22, 2013.3


2
 Appellee Pam Beckham had been named as a taker under Ms. Whaley’s 2010 will and
had been granted durable healthcare power of attorney over Ms. Whaley’s healthcare
decisions in February 2012.
3
 An amended order was entered on November 22, 2013, extending appellant’s temporary
guardianship until January 23, 2014, the date of the hearing.


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                                    2014 Ark. App. 692


         On November 6, 2013, appellees filed a verified petition to be appointed as the

permanent guardians of Ms. Whaley’s person and estate. On December 17, 2013,

appellees moved for a mental evaluation of Ms. Whaley pursuant to Arkansas Rule of

Civil Procedure 35 and Arkansas Code Annotated section 28-65-212.4 The motion was

granted in an order entered on January 10, 2014. However, no mental evaluation was

performed. Instead, the parties had the attorney ad litem meet with Ms. Whaley and “she

believe[d Ms. Whaley was] incapacitated.” The parties felt this was sufficient.

         In an order entered on February 20, 2014, the circuit court appointed appellees as

the guardians of Ms. Whaley’s person and First Community Bank as guardian of her

estate.5 Appellant timely appeals from this order.



         We review probate proceedings de novo on the record but will not reverse a

circuit court’s factual determinations unless they are clearly erroneous.6 A finding is clearly

erroneous when, although there is evidence to support it, the appellate court is left on the

entire evidence with the firm conviction that a mistake has been committed. 7 In

conducting our review, we give due regard to the opportunity and superior position of
4
    (Repl. 2012).
5
  On the same date, the circuit court entered an order denying appellant’s motion for
reconsideration of the appointment of guardian and for a temporary stay before the
appointment took effect.
6
 Hamm v. Hamm, 2013 Ark. App. 501, at 3, 429 S.W.3d 384, 387 (citing Seymour v.
Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007)).
7
 Wilson v. Lindvall, 2013 Ark. App. 364, at 2, 428 S.W.3d 532, 533 (citing Morton v.
Patterson, 75 Ark. App. 62, 54 S.W.3d 137 (2001)).


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                                       2014 Ark. App. 692


the trial court to determine the credibility of the witnesses.8 We do not, however, defer

on pure issues of law.9

         Appellant’s first argument on appeal is that the circuit court failed to obtain a

professional evaluation prior to the hearing. She argues that because the statute uses the

word “shall,” the court was required to obtain a professional evaluation and its failure to

do so constituted clear error.

         We note first that appellant failed to raise this argument below, which would

typically make the argument unpreserved for review, thereby preventing this court from

addressing the merits.10 However, as noted by appellant and unaddressed by appellee, our

supreme court found that we can address the merits despite such a failure where the

finding of incapacity was based in part upon mandatory professional evaluations that did

not satisfy the statutory requirements of Ark. Code Ann. section 28-65-212(b).11 This is

because it is not incumbent upon appellant to ask the trial court to consider the relevant

statutes that must be satisfied prior to a finding of incapacity and because Rule 52(b)(2) of

the Arkansas Rules of Civil Procedure provides that, in a bench trial, the sufficiency of the

evidence to support the trial court’s findings may be raised whether or not any objection



8
    Id. (citing Foster v. Hatfield, 2013 Ark. App. 169).
9
    Hamm, supra (citing Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991)).
10
  See Worden v. Kirchner, 2013 Ark. 509, 431 S.W.3d 243; and Diamante, LLC v. Dye,
2013 Ark. 501, 430 S.W.3d 710.
11
  Cogburn v. Wolfenbarger, 85 Ark. App. 206, 148 S.W.3d 787 (2004) (citing In re Bailey,
299 Ark. 352, 771 S.W.2d 779 (1989)).


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                                        2014 Ark. App. 692


was made below.12 Accordingly, we are permitted to address the merits of appellant’s

argument despite her failure to raise it below.

           Arkansas Code Annotated section 28-65-212 provides that a professional evaluation

shall be performed prior to the court hearing on any petition for guardianship with certain

exceptions, inapplicable here, and that the evaluation shall be performed by a professional

or professionals with expertise appropriate for the respondent’s alleged incapacity.13

“Professional” means a physician, licensed psychologist, or licensed certified social worker

with training, experience, and knowledge of the particular alleged disability of the

respondent.14 “Evaluation” means a professional assessment of the abilities of the

respondent and the impact of any impairments on the individual’s capability to meet the

essential requirements for his health or safety or to manage his estate.15 This court outlined

our review of questions of statutory interpretation in Schueller v. Schueller, as follows:

           This court reviews questions of statutory interpretation de novo because it is for the
           appellate courts to decide what a statute means. The basic rule of statutory
           construction is to give effect to the legislative intent. The doctrine of strict
           construction is to use the plain meaning of the language employed. Where the
           language of the statute is unambiguous, we determine legislative intent from the
           ordinary meaning of the language used. In considering the meaning of a statute, we
           construe it just as it reads, giving the words their ordinary meaning and usually
           accepted meaning in common language.16


12
     Id.
13
     Ark. Code Ann. § 28-65-212(a)(1) & (2).
14
     Ark. Code Ann. § 28-65-101(8) (Repl. 2012).
15
     Ark. Code Ann. § 28-65-101(2).
16
     86 Ark. App. 347, 353, 185 S.W.3d 107, 111 (2004) (internal citations omitted).


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                                    2014 Ark. App. 692


         Arkansas Code Annotated section 28-65-212 uses the word “shall” which is

typically mandatory; however, appellees note that it is well-established Arkansas law that

the word “shall” in the statute indicates mandatory compliance with the statute’s terms

unless compliance would result in an absurdity.17 Accordingly, they essentially argue that

where the parties agree that a person is incapacitated, to require more—as the statute

does—would be an absurdity. We do not agree with appellees argument in this set of

circumstances.

         In determining the incapacity of a person for whom a guardian is sought to be

appointed for cause, other than exceptions which are inapplicable here, Arkansas Code

Annotated section 28-65-211 necessitates that the court shall require that the evidence of

incapacity include the oral testimony or a sworn written statement of one or more

qualified professionals, whose qualifications shall be set forth in their testimony or written

statements.18 It is undisputed that there was no oral testimony or sworn written statement

of a qualified professional as required by Arkansas Code Annotated section 28-65-

211(b)(1).

         Arkansas Code Annotated section 28-65-105 states that guardianship for an

incapacitated person shall be:

         (1) Used only as is necessary to promote and protect the well-being of the person
             and his or her property;


17
  Wooley v. Planter’s Cotton Oil Mill, Inc., 91 Ark. App. 213, 217, 209 S.W.3d 409, 413
(2005) (citing Ramirez v. White Cnty. Cir. Ct., 343 Ark. 372, 38 S.W.3d 298 (2001)); see
Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986).
18
     (Repl. 2012).


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                                      2014 Ark. App. 692


          (2) Designed to encourage the development of maximum self-reliance and
              independence of the person; and

          (3) Ordered only to the extent necessitated by the person’s actual mental, physical,
          and adoptive limitations.19

Without the required professional evaluation, the circuit court did not have sufficient

evidence to find that a guardian needed to be appointed for Ms. Whaley. Accordingly, the

circuit court’s failure to obtain a professional evaluation prior to the court hearing prior to

the appointment of a guardian was clearly erroneous.

          Because we reverse on this point, we do not address appellant’s other points on

appeal.

          Reversed.

          WYNNE, J., agrees.

          GRUBER, J., concurs.




19
     (Repl. 2012).
                                               7
                              2014 Ark. App. 692
       RITA   W. GRUBER, Judge, concurring. I agree with the majority’s decision to

reverse and remand this case. It was error for the trial court to proceed with the guardianship

hearing without the required mental evaluation. I write separately to point out that the trial

court also failed to give due regard to the order of preference in appointing a guardian as set

out in Arkansas Code Annotated section 28-65-204 (Repl. 2012). The statute provides, in

pertinent part, that “the court shall appoint as guardian of an incapacitated person the one

most suitable who is willing to serve, having due regard to . . . [t]he relationship by blood or

marriage to the person for whom guardianship is sought. Ark. Code Ann. § 28-65-204(b)(4).

       We have stated that the statute “does not mandate an ironclad order of preference, but

leaves the appointment of a guardian who would forward the best interests of the incompetent

to the sound discretion of the court.” Martin v. Decker, 96 Ark. App. 45, 53, 237 S.W.3d.

502, 507 (2006). However, it is recognized as a general rule that consanguinity is considered

a recommendation in the selection of a guardian for an incompetent, and will not be

disregarded except upon strong grounds, the presumption being that the next of kin of the

incompetent will be more likely to treat the latter with patience and affection than will a

stranger. McCartney v. Merchants & Planters Bank, 227 Ark. 80, 82–83, 296 S.W.2d 407,

408–09 (1956) (citing 21 A.L.R.2d 880). Here, the trial court did not make adequate findings

as to why intervenors, Pam and Don Beckham, should be granted guardianship over

appellant, who is Ms. Whaley’s granddaughter.

       Frances Morris Finley, for appellant.

       Greg Crumpton, P.A., by: Greg Crumpton; and

       Wilson & Haubert, PLLC, by: Stefan K. McBride, for appellees.
