                                  Cite as 2015 Ark. App. 342

                  ARKANSAS COURT OF APPEALS
                                         DIVISION IV
                                         No. CV-14-791


CHARIS SHERLAND                                     Opinion Delivered   May 27, 2015
                                 APPELLANT
                                                    APPEAL FROM THE LONOKE
V.                                                  COUNTY CIRCUIT COURT
                                                    [NO. PR-2013-170]

TERRI SHERLAND                                      HONORABLE WILL FELAND,
                                   APPELLEE         JUDGE

                                                    AFFIRMED



                                 BART F. VIRDEN, Judge

       Appellant Charis Sherland appeals from the Lonoke County Circuit Court’s

appointment of her mother, appellee Terri Sherland, as guardian of Charis’s daughter, N.S.

(DOB: 9-18-04). On appeal, Charis argues that (1) the current interpretation of Arkansas

Code Annotated section 28-65-204(a) (Supp. 2013) is unconstitutional and does not

acknowledge the presumption that a fit parent acts in the best interest of her child, (2) the trial

court erred in determining that a guardianship was desirable because there was no evidence

that the allegations of sexual abuse were true, and (3) the trial court erred in failing to consider

the natural-parent preference because the court had not found that she was unqualified or

unsuitable. We affirm.

                                      I. Procedural History

       On May 30, 2013, Terri Sherland petitioned for emergency ex parte guardianship of

her granddaughter because Charis’s live-in boyfriend, Brandon Brewer, was accused of
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sexually abusing the child. Terri alleged that the Arkansas Department of Human Services had

advised her to keep N.S. in her custody and that the matter was being investigated by the

local police and the Crimes Against Children Division of the Arkansas State Police. Terri

further alleged that Brewer had a history of physically abusing Charis and that Charis was

pregnant with Brewer’s child. The trial court appointed Terri as temporary guardian of N.S.

in June 2013. Following a hearing in October 2013, the trial court continued the guardianship

because of concerns that Charis had expressed doubt regarding the allegations of sexual abuse,

that Brewer was said to be at Charis’s residence “more often than not,” and that Charis

continued to have a significant, ongoing relationship with Brewer. Following another hearing

in June 2014, the trial court entered an order finding that the applicable guardianship statutes

are not unconstitutional and that it was in N.S.’s best interest for Terri to be appointed

guardian. From that order comes this appeal.

                       II. Guardianship Statutes and Standard of Review

       Before appointing a guardian, the court must be satisfied that (1) the person for whom

a guardian is prayed is either a minor or otherwise incapacitated; (2) a guardianship is desirable

to protect the interests of the incapacitated person; and (3) the person to be appointed

guardian is qualified and suitable to act as such. Ark. Code Ann. § 28-65-210 (Supp. 2013).

The parents of an unmarried minor, or either of them, if qualified and, in the opinion of the

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

Ark. Code Ann. § 28-65-204(a).

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


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a finding of fact by the circuit court unless it is clearly erroneous. Witham v. Beck, 2013 Ark.

App. 351, 428 S.W.3d 537. 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. In cases involving children, we afford even more deference to the trial court’s

findings because our appellate courts have made it clear that there is no other case in which

the superior position, ability, and opportunity of the trial judge to observe the parties carries

a greater weight than one involving the custody of a child. Wilson v. Wilson, 2013 Ark. App.

759, 431 S.W.3d 369.

                                  III. Hearing in June 2014

       Terri testified that both Charis and N.S.’s former counselor had told N.S. to say that

Brewer did not rape her. Terri stated that, because Charis had a baby with Brewer in October

2013, Charis will continue to have contact with him, which would be detrimental to N.S.

Terri expressed concern that Charis would resent N.S. if Brewer were convicted of rape.

       Shawnda Smith, mother of two of Brewer’s children, testified that Brewer had

physically abused her. Smith stated that she will be a witness in Brewer’s trial for the rape of

N.S. According to Smith, Brewer threatened her over the telephone with regard to her

upcoming testimony and that she heard what she believed was Charis laughing in the

background.

       Elizabeth Knight, N.S.’s former counselor, denied Terri’s allegations that she had

instructed N.S. to say that Brewer did not rape her. Knight testified that Terri had thwarted

her efforts to speak with N.S. alone and that she had otherwise compromised counseling


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sessions. While expressing no opinion on the sexual-abuse allegations, Knight believed N.S.

had been hurt in an encounter with Brewer when he hit her on the back. N.S. had told her

that she was afraid her little brother could get hurt. Knight testified that she was unaware that

Charis was having an ongoing relationship with N.S.’s attacker. Knight could not recommend

that N.S. go someplace where she still felt afraid.

       Heather Collias, N.S.’s current counselor, testified that N.S. was terrified to go back

to the environment she was in when she was abused. Collias reported that N.S. had difficulty

sleeping, nightmares, and a high level of anxiety. Collias testified that N.S. told her that Charis

had instructed her to deny the allegations that Brewer sexually abused her.

       Charis admitted that she remains in contact with Brewer. Charis testified that she loves

Brewer and that he loves her. Charis testified that she did not believe N.S. was sexually

abused, although she acknowledged that Brewer was being tried for rape. She insisted that it

was all due to lies told by Terri, who had alienated her from N.S. Charis denied ever urging

N.S. to say that Brewer did not rape her.

                                         IV. Arguments

                  A. Constitutional Challenge and the Troxel Presumption

       Charis argues that the current interpretation of Ark. Code Ann. § 28-65-204(a) is an

unconstitutional infringement on her fundamental right to raise her child and that taking her

child from her without finding that she was unfit violates the Due Process Clause.

       If a statute is alleged to be unconstitutional, the Attorney General shall be served with

a copy of the proceeding and be entitled to be heard. Ark. Code Ann. § 16-111-106(b)


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(Supp. 2013). The purpose of the notice statute is to prevent a statute from being declared

unconstitutional without a full adjudication with adversarial parties. City of Little Rock v. Cash,

277 Ark. 494, 644 S.W.2d 229 (1982), overruled on other grounds by T & T Chem., Inc. v. Priest,

351 Ark. 537, 95 S.W.3d 750 (2003). It is generally reversible error when the Attorney

General fails to receive notice of a constitutional attack on a statute, Reagan v. City of Piggott,

305 Ark. 77, 805 S.W.2d 636 (1991), but reversal is not mandated by the notice statute. Cash,

supra. This general rule has not been applied in some exceptional circumstances, those being

where all the issues have been briefed and argued by litigants who are clearly adversarial. Id.

       There is no indication in the record that Charis gave the Attorney General notice of

her challenge to Ark. Code Ann. § 28-65-204(a), and the issues were not fully developed and

argued below. Therefore, we do not consider the constitutional aspect of Charis’s argument

on appeal. See, e.g., Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995) (supreme court

may choose not to consider an argument on ground that no notice of constitutional challenge

to statute was given to Attorney General).

       Charis also argues that the current interpretation of Ark. Code Ann. § 28-65-204(a)

does not acknowledge the presumption that a fit parent acts in her child’s best interest. She

further contends that, although the statute includes a natural-parent preference, it improperly

makes that preference subservient to the best interest of the child.

       The United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000), a

grandparent-visitation case, established a presumption that a fit parent acts in the best interest

of her child. “[S]o long as a parent adequately cares for his or her children (i.e., is fit), there


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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.” Id. at 68–69. Charis relies on In re Guardianship of S.H., 2012 Ark.

245, 409 S.W.3d 307, in which the Arkansas Supreme Court recognized that a mother, who

had not been deemed unfit, was entitled to the Troxel presumption in a proceeding to

terminate a consensual guardianship.

       Here, however, we have an initial contested guardianship proceeding, and Fletcher v.

Scorza, 2010 Ark. 64, 359 S.W.3d 413, is directly on point. In that case, our supreme court

made clear that the sole considerations in determining a guardianship pursuant to Ark. Code

Ann. § 28-65-204(a) are whether the natural parent is qualified and suitable and what is in the

child’s best interest. “To the extent that any of our prior cases suggest a standard of fitness or

unfitness in guardianship proceedings involving the statutory natural-parent preference, we

overrule them.” Fletcher, 2010 Ark. 64, at 13, 359 S.W.3d at 421. The supreme court also

noted that the natural-parent preference is but one consideration, which is subservient to the

principle that the child’s best interest is the paramount consideration. Id.

       In Gantt v. Arkansas Department of Human Services, 2013 Ark. App. 217, this court

affirmed an order appointing the paternal aunt guardian of Gantt’s children because Gantt was

“not emotionally in a position to protect the children” following an abusive relationship to

which the children had been exposed. This court rejected Gantt’s arguments that there was

no evidence that she was an unfit mother and that she was entitled to the natural-parent

preference, stating that her arguments did not accurately reflect our guardianship laws and


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citing Fletcher, supra.1 Thus, to the extent that the trial court did not consider Charis’s fitness

as a parent, there was no error under the current interpretation of our guardianship laws.2

       In any event, there was evidence from which the trial court could have reasonably

concluded that Charis was unfit. After all, a parent has a duty to protect her child. See, e.g.,

Lipscomb v. Ark. Dep’t of Human Servs., 2010 Ark. App. 257 (affirming a finding of

dependency-neglect where mother suspected sexual abuse perpetrated by stepfather, yet

mother failed to protect her child). Charis was aware of the sexual-abuse allegations at least

one year prior to the 2014 proceeding, yet she testified that she did not believe her daughter,

despite the various investigations and a pending criminal charge against Brewer. Instead,

Charis remained devoted to Brewer, even though she knew that her continued relationship

with him was an impediment to regaining custody of N.S. The trial court could have found

that Charis put her relationship with Brewer before the best interest of her child. Assuming

a finding on fitness was required by Troxel, the evidence would support a finding that Charis

was unfit. This court may affirm the trial court when it reaches the right result, albeit for the

wrong reason. Tiner v. Tiner, 2011 Ark. App. 478, 385 S.W.3d 326.

                                     B. Lack of Evidence


       1
         “The General Assembly is presumed to be familiar with the appellate courts’
interpretation of its statutes, and if it disagrees with those interpretations, it can amend the
statutes. Without such amendments, however, the appellate courts’ interpretations of the
statutes remain the law.” Miller v. Enders, 2013 Ark. 23, at 12–13, 425 S.W.3d 723, 730
(citing McCutchen v. City of Fort Smith, 2012 Ark. 452, at 19, 425 S.W.3d 671, 683 (internal
citations omitted)).
       2
        In granting Terri’s petition for guardianship of N.S., the trial court discussed Charis’s
“issues of fitness.”

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       Next, Charis argues that the trial court erred in finding that a guardianship was

desirable because there was no evidence that Brewer had actually abused N.S. and no proof

that she had knowingly permitted or condoned any abuse. She urges this court to find that

there was insufficient evidence of any neglect or abuse by her.

       As a preliminary matter, the question on appeal is limited to the propriety of the trial

court’s appointing Terri as N.S.’s guardian and not the sufficiency of evidence to show that

Charis’s actions amounted to neglect or abuse.

       The evidence that the trial court had before it was that N.S. had disclosed to both

counselors what she accused Brewer of doing to her. Collias believed N.S. had been sexually

abused. While Knight did not give an opinion on the truthfulness of N.S.’s sexual-abuse

allegations, she was “confident” that Brewer had physically hurt N.S. by hitting her on the

back. Smith indicated that Brewer was a violent man who had physically abused her, and

Terri alleged that Brewer had physically abused Charis. The sexual-abuse allegations were

being investigated by authorities, and a prosecutor apparently believed there was sufficient

evidence to charge Brewer with rape. Charis disbelieved her own child, and there was

evidence that she had attempted to quiet N.S. in an effort to protect Brewer.

       The child’s best interest is the paramount consideration in guardianship matters,

Fletcher, supra, and there was evidence from which the trial court could have found that it was

not in N.S.’s best interest to return her to a home where N.S. was fearful for her safety and

that of her younger brother. The trial court, which determines credibility, could have

concluded that N.S. remained at risk and that Charis would not protect her from harm. We


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hold that the trial court did not clearly err in determining that a guardianship was desirable.

                                C. Natural-Parent Preference

       Finally, Charis argues that the trial court erred in not applying the natural-parent

preference because she had not been found unqualified or unsuitable. There is a statutory

preference to be given to the parent “if qualified and, in the opinion of the court, suitable”

to be appointed guardian, as set forth in Ark. Code Ann. § 28-65-204(a). This natural-parent

preference does not automatically attach to a child’s natural parents; it is within the trial

court’s discretion to make a determination as to whether a parent is “qualified” and “suitable.”

Wilson, supra. Nothing in section 28-65-204(a) requires specific findings. See also Kuelbs, supra

(noting that no hearing or specific factual findings were required by sections 28-65-203 and

28-65-210). In appointing Terri guardian of N.S., the trial court noted Charis’s “voiced

skepticism” with respect to N.S.’s allegations of sexual abuse “in clear contradiction” of the

child’s counselor, her “continued significant social contact” with Brewer, and a lack of

stability in Charis’s life and home. We conclude from this language that the trial court was not

satisfied that Charis was suitable to be N.S.’s guardian, despite the statutory preference.

       Affirmed.

       GRUBER and WHITEAKER, JJ., agree.

       Bailey & Oliver Law Firm, by: Frank H. Bailey, Sach D. Oliver, and T. Ryan Scott, for

appellant.

       Christopher R. Warthen, for appellee.




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