                                  Cite as 2015 Ark. 289

               SUPREME COURT OF ARKANSAS
                                        No.   CV-15-126


 IN THE MATTER OF THE                             Opinion Delivered   June 25, 2015
 GUARDIANSHIP OF W.L., A
 MINOR                                            APPEAL FROM THE LOGAN
                                                  COUNTY CIRCUIT COURT
 DAVID LINEHAM                                    [NO. 42P PR-2009-98]
                              APPELLANT
                                                  HONORABLE DAVID H.
 V.                                               MCCORMICK, JUDGE

 SARAH RACHEL HYDE ET AL.
                    APPELLEES REVERSED AND REMANDED;
                              COURT OF APPEALS OPINION
                              VACATED.


                       RHONDA K. WOOD, Associate Justice

       Under our guardianship statutes, a court may terminate a guardianship if it is no

longer necessary or if it is in the ward’s best interest. We hold that a guardianship is no

longer necessary when a fit parent who consented to a guardianship revokes consent.

Here, the circuit court’s ruling that the father, David Lineham, was unfit was clearly

erroneous. Therefore, the court should have granted David’s petition to terminate a

guardianship to which he had earlier consented. We reverse the order keeping the

guardianship in place and remand for the court to enter an order terminating the

guardianship and placing W.L. in David Lineham’s custody.

                                   I.         Relevant Facts

       The relevant facts in this case were developed at hearings stemming from two

petitions to terminate a guardianship. David Lineham and Sarah Hyde started dating in
                                  Cite as 2015 Ark. 289

2007. The two lived in a suburb of Washington D.C. in northern Virginia. Sarah became

pregnant. Their child, W.L., was born in March 2008. At that time, David and Sarah lived

with David’s parents, but they moved into their own apartment in July 2009.

      Sarah’s parents, Dennis and Anna Hyde, also lived in the area. (The Hydes also had

another home in Arkansas). In early fall of 2009, the Hydes had guardianship papers

prepared and they presented them to David and Sarah for consent. David testified that he

and Sarah consented to the Hydes’ exercising a guardianship over W.L. so that W.L.

would be able to have access to health insurance and daycare under Dennis Hyde’s

military benefits. W.L. continued to reside with David and Sarah. In December 2009, the

Logan County Circuit Court entered an order appointing the Hydes as guardians over

W.L. The Hydes eventually moved to Arkansas in July 2010. W.L. moved with them and

has lived with Dennis and Anna ever since.1

      David Lineham filed a petition to terminate the guardianship in December 2010, a

year after the guardianship’s inception and five months after the Hydes had moved to

Arkansas. It took the circuit court over a year—until January 2012—to hold a hearing in

the case.2 At this hearing, David testified that he never intended to give up his parental

rights to W.L. He also testified that in September 2010 he had married Danielle Lineham,


      1
         Sarah initially moved with the Hydes to Arkansas, but ended up moving back to
Virginia. She has subsequently returned to Arkansas.
      2
         This court is disturbed by the length of time it took for the court to hold the
hearing. Cases involving the placement of a child should be heard quickly to provide
permanency for the child.

                                              2
                                  Cite as 2015 Ark. 289

that both he and Danielle were employed, and that they shared a two-bedroom

apartment. However, David also testified that he had visited W.L. only twice in Arkansas

and that his telephone communication with her was sporadic. David also admitted that he

had not provided the Hydes with any financial assistance since they had become W.L.’s

guardians.

       In April 2012, the circuit court entered an order denying David’s petition and kept

the guardianship in place. The court found that the guardianship was still necessary in

order to maintain W.L.’s access to food, clothing, and financial support, which David had

not provided. The court further found that David and his new wife Danielle “lack[ed] a

meaningful relationship” with W.L. The court set a visitation schedule whereby David

could visit W.L. in Arkansas and permitted W.L. to visit David in Virginia during the

summer. David did not appeal from this order.

       The present round of litigation started in October 2012 when Sarah, W.L.’s

mother, filed a petition to terminate her parents’ guardianship over W.L. David

subsequently filed a second petition to terminate the guardianship. These motions were

filed in the underlying guardianship case, which had been assigned to the probate division

of the Logan County Circuit Court. Sarah also filed a petition for declaratory judgment

and establishment of paternity, a case which had been assigned to the domestic-relations

division of the same court. Eventually all parties—David, Sarah, and the Hydes

(guardians)—agreed that Sarah would file a petition for custody in the domestic-relations




                                            3
                                   Cite as 2015 Ark. 289

case and that the case would then be consolidated into the probate matter. An order was

entered to that effect in November 2012. David then filed a counterclaim for custody.

       The circuit court held a two-day hearing in August 2013 to decide the

consolidated petitions to terminate the guardianship and, if necessary, the petitions for

custody. David testified that he and his wife still lived in Virginia. Since the last hearing,

he had made eighteen trips to Arkansas to visit W.L. and had made multiple phone calls to

her each week. David worked full-time at a car dealership, making a gross salary of

between $5000 and $5500 per month. David’s wife, Danielle, testified that she also

worked full-time and made around $35,000 per year. In essence, David addressed the

court’s concern from the previous hearing that he lacked significant contact with his

daughter and did not have a meaningful relationship with her.

       Sarah testified that since the last hearing she had had another child and later married

the father, William Lawson. Sarah had sporadic residency, but now lived in a trailer on the

Hydes’ property in Arkansas. She said she paid rent to her parents by “working on the

farm.” Neither she nor her husband owned a vehicle. She had a suspended driver’s license

in Virginia. She did not have a job and testified that she had $1.16 in her bank account.

Finally, Sarah admitted that she had two felony drug convictions for possession of heroin

and Dilaudid. Those convictions were in Virginia, where she was also facing a probation-

revocation hearing the following month.

       The court also heard testimony from Dennis and Anna Hyde. They testified that

David had still not provided any financial support for W.L. while they had been her

                                              4
                                   Cite as 2015 Ark. 289

guardians. Anna testified that David had done “all that he’s been asked to do” and that

“he’s been an actively engaged father.” She also stated that he had provided clothing and

toys for W.L. and had developed a relationship with her. Despite this, both of the Hydes

testified that they believed the guardianship was necessary in regards to David, but not as

to their daughter, Sarah. In other words, they thought their guardianship should be

terminated if the court were to return custody to Sarah; but if the court were to return

custody to David, they thought their guardianship should stay in place.

       After hearing the testimony, the court took the case under advisement and later

issued a letter opinion and order. First, the court found that “from its previous ruling that

David Lineham was determined to be unfit, although specific wording to that effect was

not used.” Second, the court found for the first time that Sarah was unfit and that David

remained unfit. Finally, the court found that termination of the guardianship was not in

W.L.’s best interest. Accordingly, the court kept the guardianship in place and denied and

dismissed David and Sarah’s petitions to terminate the guardianship and petitions for

custody. David has appealed; notably, Sarah has not.3

                             II.    Termination of Guardianship

       Guardianships are special proceedings that are governed by statute. Hetman v.

Schwade, 2009 Ark. 302, 317 S.W.3d 559. Under the guardianship statute, a guardianship

can be terminated “[i]f, for any other reason, the guardianship is no longer necessary or for

       3
         This case originally went to the court of appeals, which affirmed. See In re
Guardianship of W.L., 2015 Ark. App. 38, 454 S.W.3d 257. We granted a petition for
review and, therefore, treat the case as if it had been originally filed here. Goodloe v.
Goodloe, 2014 Ark. 300, 439 S.W.3d 5.
                                            5
                                    Cite as 2015 Ark. 289

the best interest of the ward.” Ark. Code Ann. § 28-65-401(b)(3) (Repl. 2012).

Termination-of-guardianship cases have been in a recent state of flux. We tried to bring

some sense to this area of the law in Graham v. Matheney. However, while the Graham

court acknowledged that termination-of-guardianship cases were governed by a

disjunctive statute, it noted that if the ward is a child, the circuit court must still consider

best interest, which has the effect of turning the test into a conjunctive one—the or

becomes an and. 2009 Ark. 481, at 14–15, 346 S.W.3d 273, 281.

       We attempted to clarify the guardianship analysis in In re Guardianship of S.H. (1),

2012 Ark. 245, 409 S.W.3d 307 (In re S.H. (1)). There, we recognized and reaffirmed a fit

parent’s “fundamental liberty interest in the care, control, and custody of her child.” 2012

Ark. 245, at 8–9, 409 S.W.3d at 313. The United States Supreme Court acknowledged

this principle in Troxel v. Granville, 530 U.S. 57 (2000), and in accordance we have

adopted a presumption that a fit parent acts in his or her child’s best interest. See, e.g.,

Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002).

       The issue in In re S.H. (1) was whether a fit parent who consented to a

guardianship had the burden to prove, under Graham, both prongs of the statutory test in

order for the court to terminate the guardianship. We reasoned that “parents who have

not been found unfit do not relinquish their fundamental liberty interest in raising their

children by consenting to a guardianship.” 2012 Ark. 245, at 14, 409 S.W.3d at 316.

Accordingly, we adopted a two-step, burden-shifting procedure when a fit parent who

consented to a guardianship later moves to terminate that guardianship:

                                               6
                                  Cite as 2015 Ark. 289

       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. We remanded the case for the circuit court to reevaluate the

case applying this procedure.

       When that case returned to us after remand, we clarified the test in two ways. See

In re Guardianship of S.H. (2), 2015 Ark. 75, 455 S.W.3d 313 (“In re S.H. (2)). First, we

said that a fit parent meets the burden that a guardianship is no longer necessary under the

statute by revoking consent. Id. at 14, 455 S.W.3d at 322. Second, we said that the

guardians can rebut this presumption by proving best interest by clear and convincing

evidence. Id. We noted that this conjunctive burden-shifting test was inconsistent with the

disjunctive statute, but nevertheless ruled that we were bound by the law-of-the-case

doctrine. Ultimately, we reversed the circuit court’s order keeping the guardianship in

place and ordered the court to return the child to her mother, who was fit.

       We are not bound by law of the case here and can return to the statute’s plain

language, which states that “a guardianship may be terminated by court order . . . [i]f, for

any other reason the guardianship is no longer necessary or for the best interest of the

ward.” Ark. Code Ann. § 28-65-401(b)(3). Parents have a fundamental right to raise their

children. We will not lightly intrude on this fundamental right. We have already said that

a guardianship is no longer necessary once a fit parent revokes an earlier-given consent.
                                             7
                                    Cite as 2015 Ark. 289

This is because a fit parent is presumed to be acting in the child’s best interest. By

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. The statute does contain another method for the guardianship to be

terminated, that is, by showing it is no longer in the ward’s best interest. However, given

that the legislature has created a disjunctive test, the parent can move to terminate under

either prong.

       This ruling is consistent with the statutory text and a fit parent’s fundamental

liberty interest in the care, control, and custody of his or her child. Furthermore, the

burden of proof does not and cannot shift to the guardians when a guardianship is

terminated based on a fit parent’s revocation of consent. Simply put, a fit parent’s decision

regarding his or her children is conclusive. See Troxel, 530 U.S. at 68–69 (“[S]o long as a

parent adequately cares for his or her children (i.e., is fit), there will normally be no reason

for the State to inject itself into the private realm of the family to further question the

ability of that parent to make the best decisions concerning the rearing of that parent’s

children.”).

       To the extent Graham, In re S.H. (1), and In re S.H. (2) are in conflict with this

decision, they are overruled. The judicially created tests from our past guardianship cases

                                               8
                                  Cite as 2015 Ark. 289

have moved termination-of-guardianship cases too far from the statute and, as In re S.H.

(2) and this case have shown, result in circuit courts unnecessarily delaying the return of

children to a fit parent’s custody. For these reasons, it would be wrong to adopt the

dissent’s argument that we should affirm since the circuit court properly applied the then

existing legal test and has unbridled discretion. There is a reason we review questions of

fact, and sometimes, upon review, we are left with a definite and firm conviction that a

mistake has been made. Such is the case here. In short, our judicially created, two-step

tests are ineffective to protect a fit parent’s fundamental rights and are divorced from the

statutory text. The best path is to abandon the tests and bring termination-of-guardianship

cases in line with the statute.

                                     III.   Discussion

       Here, the circuit court made two rulings regarding David’s fitness. First, the court

retroactively said David had been unfit at the first termination-of-guardianship hearing,

although never mentioning it in its first order. Second, the court ruled that David

continued to be unfit at the second termination-of-guardianship hearing. We review

probate proceedings de novo, but we will not reverse a finding of fact by the circuit court

unless it is clearly erroneous. Devine v. Martens, 371 Ark. 60, 263 S.W.3d 515 (2007). 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




                                             9
                                    Cite as 2015 Ark. 289

the probate judge to determine the credibility of the witnesses. Id. Both of the circuit

court’s findings regarding David’s unfitness are clearly erroneous.

       The court had no authority to retroactively declare David unfit. Here is an excerpt

from the circuit court’s letter opinion:

       An examination of the prior orders of this court . . . does not reveal that this court
       has expressly found either David Lineham or Sarah Hyde to be unfit. However,
       despite the arguments of David Lineham that no such finding has been made to
       him, the court believes that such a finding was made as to him in this court’s letter
       opinion of February 28, 2012, (which was incorporated into the Order filed on
       April 9, 2012). Although the specific word unfit was not used, an examination of
       this court’s letter opinion reveals [the contrary].

The court went on to note that, at the first hearing, it found that David had not provided

food, clothing, or financial support to W.L. and did not demonstrate a meaningful

relationship with W.L., although no court had ordered him to provide support nor did the

Hydes request it. These findings, according to the circuit court, are “clearly a finding[] of

unfitness, even if not so worded.” In short, the court ruled in its November 2013 order

that its April 2012 order contained a finding of unfitness.

       Under Arkansas Rule of Civil Procedure 60(a), the circuit court may modify or

vacate an order or judgment “[t]o correct errors or mistakes or to prevent the miscarriage

of justice . . . within ninety days of it having been filed with the clerk.” The court,

therefore, loses jurisdiction to modify an order under Rule 60(a) unless it does so within

ninety days. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997).4 For example, in


       4
          The court has the power to set aside an order or judgment after ninety days if one
of seven conditions is present. Ark. R. Civ. P. 60(c). None of these conditions is at issue
in this case.
                                             10
                                   Cite as 2015 Ark. 289

Slaton, by a September 1991 divorce decree the court originally granted the father sole

custody; however, in March 1992, the court modified the decree by declaring that the

father and mother would share joint custody. We reversed, holding, in part, that the court

“did not have jurisdiction to enter its March 5, 1992 order pursuant to Ark. R. Civ. P.

60.” Id. at 296, 956 S.W.2d at 154. Likewise, in this case, the court did not have

jurisdiction to modify the April 2012 order via its November 2013 order. In short, the

circuit court could not retroactively declare David unfit.5

       The court also held in its second order that David “remains unfit as a parent.” This

finding is clearly erroneous. The court outlined the specific reasons for this finding in its

letter opinion, reasons that include the following:

    David refused to sit with the Hydes during W.L’s kindergarten graduation
     ceremony;

    David testified that he had spent $8000 on W.L. during his visits to Arkansas, yet
     Dennis Hyde testified that David had offered no financial support for W.L.’s
     medical bills;

    David had set up an online dating account at “Fet Life,” which included a listing of
     his (perfectly legal) sexual interests;

    Danielle testified that she had made two calls to the DHS hotline regarding W.L.
     and had also made two calls about Sarah’s status as a fugitive;



       5
         We are aware that guardianships are special proceedings and are generally exempt
from the Rules of Civil Procedure under Rule 81(a). See Swenson v. Kane, 2014 Ark. 44,
447 S.W.3d 118. However, Rule 81(a) states that the rules shall not apply only where the
statute provides a “different” procedure. Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535
(1999). Here, no guardianship or probate statute provides a different procedure, so Rule
60 applies. Cf. Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006) (reversing order
reopening probate case based, in part, on Ark. R. Civ. P. 60(a)).
                                            11
                                     Cite as 2015 Ark. 289

    David blocked calls from Sarah, and Danielle refused to have coffee with Sarah;

    David refused to provide the Hydes with medical documentation regarding medical
     treatment W.L. had received during one of her summer trips to Virginia;

    David lied to Dennis about their travel plans with W.L. during a winter storm, and
     David also told W.L. to lie to Dennis about these plans;

    During the hearing, David seemed uninterested in Sarah’s testimony, which,
     according to the court, was consistent with his failure to communicate with them
     regarding W.L.

       None of these facts calls into question David’s fitness as a parent. Fitness, in this

context, has an imprecise definition. In Troxel, the Court suggested that a parent is fit if he

or she “adequately cares for” the child. Troxel, 530 U.S. at 68. In other cases, we have said

the following: “Courts are very reluctant to take from the natural parents the custody of

their child, and will not do so unless the parents have manifested such indifference to its

welfare as indicates a lack of intention to discharge the duties imposed by the laws of

nature and of the state to their offspring suitable to their station in life.” Lloyd v. Butts, 343

Ark. 620, 624, 37 S.W.3d 603, 606 (2001) (citing Holmes v. Coleman, 195 Ark. 196, 111

S.W.2d 474 (1937)).

       At the second hearing, David addressed every concern the court had at the first

hearing. Anna Hyde even testified that David had done everything the court had asked

him to do at the first hearing. There were no facts to suggest that David was an unfit or

improper parent. The court’s concerns do not deal with David’s ability to adequately care

for W.L. or indicate an intention by David to fail to discharge his duties as a parent;

instead, most related to David and Danielle’s inability or unwillingness to communicate

                                               12
                                    Cite as 2015 Ark. 289

and interact with the Hydes. But communication breakdowns will inevitably occur when

a parents and grandparents have had protracted litigation over the custody of a young

child.

         Petty recriminations are unfortunately common in custody and visitation

situations. For instance, David’s refusal to sit with the Hydes at W.L.’s graduation and

Danielle’s refusal to have coffee with Sarah are not ideal circumstances for W.L. Neither

were David’s and Danielle’s repeated but unsubstantiated reports to child-protective

service agencies. These facts might be relevant in a change-of-custody situation, but they

have no bearing on David’s ability to provide for W.L.’s basic needs. The clear testimony

was that David was financially stable, caring, and stood ready to give her a home and

provide for all of her needs.

         Moreover, to deny David’s petition to terminate the guardianship would result in

totally ignoring the positive steps he has taken since first consenting to the guardianship. In

Devine v. Martens, we noted that courts considering guardianship cases should encourage

and recognize a parent’s efforts to improve her home and parenting skills. 371 Ark. at 74,

263 S.W.3d at 526. There, the circuit court granted a guardianship petition filed by

grandparents after finding that the parent was unfit. The circuit court’s unfitness finding

was based on environmental neglect, educational neglect, questionable moral guidance,

and abandonment. We reversed, holding that the parent had taken “significant action

toward rectifying any issues that would keep her from retaining custody of her son.” Id.




                                              13
                                    Cite as 2015 Ark. 289

We noted that in guardianship cases, like dependency-neglect cases, the courts should

recognize and encourage parental improvement.

        Like the parent in Devine, David has taken significant steps to correct any issues that

would keep him from having custody of W.L. In this case, when the first termination-of-

guardianship case happened, the court refused to terminate because David had not been

providing for W.L.’s material needs and lacked a significant relationship with W.L. These

problems have since been rectified. David has a full-time job; he has been in a three-year,

committed relationship with his new wife Danielle; and since the first hearing, he has

visited Arkansas eighteen times to see W.L. and communicates with her through phone

calls multiple times per week. W.L. has even spent two, six-week summer vacations with

David in Virginia. Plainly stated, if the court authorizes a parent to have extended,

unsupervised, and out-of-state visitation, then that provides strong evidence that the

parent is fit.

        Finally, consensual guardianships serve a valuable purpose. An otherwise fit parent

who is struggling may recognize that, for a period of time, the child might be better off

with another caregiver while the parent deals with his or her challenges. This parent

should not then be punished for that foresight by making it an impossible burden to regain

custody of that child. In this case, this young, single, fit father was financially insecure and

did not have medical insurance for W.L. and consented to a guardianship for his

daughter’s benefit. Within one year, he stepped forward and had achieved stability in all




                                              14
                                    Cite as 2015 Ark. 289

respects. He should not have had to spend five years and tens of thousands of dollars in

traveling expenses before regaining custody of his daughter.

       Summing up, the court clearly erred in finding that David was an unfit parent. He

is a fit parent, and this court is left with a firm conviction that a mistake was made. Since

David is a fit parent, the circuit court should have terminated the guardianship once David

revoked his consent to it.6 Once the guardianship was terminated, the court then should

have determined which parent was the proper custodian since David and Sarah had filed

competing petitions for custody. It is clear that the court erred by denying David’s

petition for custody of W.L. The court found Sarah, W.L.’s mother, unfit. Sarah did not

appeal this or any other ruling, so this finding is law of the case. See K.S. v. State, 343 Ark.

59, 31 S.W.3d 849 (2000). A fit parent (David) should get custody of a child over an unfit

parent (Sarah). We therefore reverse and remand for the court to enter an order

terminating guardianship and granting custody of W.L. to David.

       Reversed and remanded; court of appeals opinion vacated.

       HANNAH, C.J., and DANIELSON, J., dissent.

       PAUL E. DANIELSON, JUSTICE, dissenting. I respectfully dissent. Yet again, a

majority of this court has chosen to disregard our standard of review and substitute its

judgment for that of the circuit court.        In doing so, it has rejected any deference

whatsoever to the circuit court, which was clearly in the superior position to determine

       6
        The dissent points out that the statute leaves the trial court with discretion even
when the conditions necessitating guardianship no longer exist. This is a correct statement
of the law; however, there were no other facts in front of the court that could overcome
David’s fundamental right to raise his child.
                                              15
                                    Cite as 2015 Ark. 289

credibility based on its ability and opportunity to observe W.L., her parents, and her

guardians.

       The case law governing guardianships has become nothing more than a constantly

moving target,1 which, in the instant case, has resulted in the circuit court, the parties, and

a young child being whipsawed. Despite having followed this court’s precedent at the

time of its order, the circuit court is now overturned for reasons it would have been

unable to foresee but for a crystal ball. Not only does today’s majority opinion completely

change the procedure for determining whether to terminate a guardianship, it does so

based on a fundamental misreading of the statute.

       While the majority purports to adhere to the statutory text, it does not do so.

According to today’s decision, the instant a fit parent has revoked consent to a

guardianship, the guardianship becomes no longer necessary, and the circuit court shall

terminate that guardianship. But that is in no way what the statute dictates.

       The plain language of subsection (b)(3) of Arkansas Code Annotated § 28-65-401

(Repl. 2012), provides that “[a] guardianship may be terminated by court order after such

notice as the court may require: . . . [i]f, for any other reason, the guardianship is no

longer necessary or for the best interest of the ward.” Ark. Code Ann. § 28-65-401(b)(3)

(emphasis added). In other words, the statute clearly bestows discretion on the circuit


1
 Having established our standard in these matters in In re Guardianship of S.H., 2012 Ark.
245, 409 S.W.3d 307 (S.H. I), a majority of this court then “clarif[ied]” that standard in
April of this same year, In re Guardianship of S.H., 2015 Ark. 75, at 5, 455 S.W.3d 313,
317 (S.H. II), and now, less than three months later, abrogates that standard entirely.

                                              16
                                    Cite as 2015 Ark. 289

court when determining whether to terminate a guardianship; it absolutely does not

mandate that the guardianship shall be terminated upon revocation of consent, as the

majority appears to hold.2 See, e.g., Marcum v. Wengert, 344 Ark. 153, 164, 40 S.W.3d

230, 237 (2001) (“The word ‘may’ is usually employed as implying permissive or

discretional, rather than mandatory, action or conduct and is construed in a permissive

sense unless necessary to give effect to an intent to which it is used.”).

       As it now stands, the circuit courts of this state will oversee consensual

guardianships in name only, as the discretion given by the General Assembly to the circuit

courts to terminate such guardianships has been completely eliminated. The Supreme

Court did not hold in Troxel v. Granville, 530 U.S. 57 (2000), that courts were without

any discretion at all in such matters or that a fit parent’s decision as to the care, custody,

and control of a child is binding and without the ability to ever be challenged in any way.

To the contrary, according to Troxel, “if a fit parent’s decision . . . becomes subject to

judicial review, the court must accord at least some special weight to the parent’s own

determination.” 530 U.S. at 70.



2
 Nor do I in any way agree with the majority’s opinion that the revocation of consent to
the guardianship alone sustains the no-longer-necessary basis for termination. Under the
majority’s analysis today, whether a parent revokes consent to the guardianship just hours
after giving consent or even a decade later, the circuit court must grant the petition to
terminate without any further inquiry. Certainly this could not have been the General
Assembly’s intent when it saw fit to provide for judicial supervision of guardianships in the
first place. See Ark. Code Ann. § 28-65-107(a) (Repl. 2012) (“The jurisdiction of the
circuit court over all matters of guardianship . . . shall be exclusive, subject to the right of
appeal.”).

                                              17
                                   Cite as 2015 Ark. 289

       This court complied with Troxel and afforded the requisite special weight to parents

who had consented to a guardianship when we first adopted the standard for determining

whether to terminate a guardianship in S.H. I, 2012 Ark. 245, 409 S.W.3d 307. It was a

very workable standard that I believe allowed a circuit court to give weight to the parent’s

fundamental rights and take into consideration the child’s interests. But, in addition, it

complied with the General Assembly’s grant of some discretion to the circuit courts of this

state in deciding whether to terminate a guardianship.

       Because I believe that this court’s standard set forth in S.H. I was not only the

appropriate one but also in full compliance with the dictates of our termination statute and

Troxel, I strongly dissent from the majority’s overruling of that standard. Because I believe

that the circuit court did not clearly err in making its determinations under that standard, I

would affirm the circuit court’s order.3

       HANNAH, C.J., joins.

       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.




3
 For the reasons I have set forth in prior opinions, I further note the danger in the
majority’s directive to award custody to David forthwith when it does not have the
benefit of knowing the events and circumstances since entry of the circuit court’s order in
2013. See S.H. II, 2015 Ark. 75, 455 S.W.3d 313 (Danielson, J., dissenting); Ingle v. Ark.
Dep’t of Human Servs., 2014 Ark. 53, 431 S.W.3d 303 (Danielson, J., concurring in part
and dissenting in part).

                                             18
