Fletcher v. Scorza

PAUL E. DANIELSON, Justice. liAppellant Angie Fletcher appeals from the circuit court’s order appointing appel-lee Kevin Scorza guardian of J.F., a minor. Ms. Fletcher first appealed the circuit court’s decision to our court of appeals, which reversed the order of guardianship. See Fletcher v. Scorza, 2009 ArkApp. 372, 2009 WL 1232100 (unpublished). Mr. Scorza petitioned this court for review, which we granted. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. See Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886. Ms. Fletcher’s sole point on appeal is that there was insufficient evidence to support Mr. Scorza’s third-party petition for guardianship. We affirm the circuit court’s order. On January 3, 2008, Mr. Scorza filed an amended petition for the appointment of a guardian over the person and estate of J.F. The petition stated that J.F. was ten years old and that Mr. Scorza was “interested in obtaining guardianship of the named incapacitated person 12by reason of the petitioner’s eight (8) year in loco par-entis relationship with the incapacitated person and because the biological parents of the incapacitated person have not been able to care for him or have not been willing to care for him.” On January 7, 2008, Mr. Scorza filed a petition for ex parte emergency relief, and that same day, the circuit court entered an order appointing Mr. Scorza temporary guardian of J.F. and scheduling a hearing on whether the temporary guardianship would continue. On January 10, 2008, the circuit court held that hearing. Mr. Scorza testified that J.F. was the son of Ms. Fletcher, who was the mother of his two other children.1 He testified that he, along with J.F. and his other two children, first came to Arkansas from New Orleans in 2005, due to Hurricane Katrina, and stayed because they could not return after the hurricane. He testified that in December 2007, Ms. Fletcher called him, told him that she had finished school, and requested that the children come back to New Orleans to be with her. He further testified that J.F. had lived with him since August 2005 and that he had been J.F.’s sole provider since then. He stated that although Ms. Fletcher had not provided any financial support to him, she had purchased gifts for the children at Christmas and on their birthdays. He further stated that he had been paying Ms. Fletcher child support since 2005 for their two children, but that the payments had recently ceased. Mr. Scorza testified that two or three weeks after his child-support obligation ceased, |HMs. Fletcher asked for the children to come back to New Orleans and, then, she came and got them. Mr. Scorza testified that Ms. Fletcher then called him and asked him to “pack up all their clothing.” He further testified that Ms. Fletcher refused to tell him where she was living or where the children would be going to school. With respect to J.F.’s natural father, Mr. Scorza testified that he did not know who he was, had never met him, nor did he know his name. He testified that to his knowledge, J.F.’s natural father had never provided any support for J.F., nor attempted to contact him. Mr. Scorza stated that he came into J.F.’s life in 1999, when J.F. was slightly older than one year. Mr. Scorza testified that he lived with Ms. Fletcher and J.F. from 1999 until the beginning of 2005. He testified that after moving out, he had all three children on the weekends and overnight, because Ms. Fletcher had started working overnight. He stated that the arrangement continued until he moved out of New Orleans because of the hurricane. Mr. Scorza testified that J.F. had never lived apart from his half-siblings and that the three children had a close relationship. He testified that J.F. was currently enrolled in school and was battling a learning disability, for which he was receiving special tutoring. Mr. Scorza further stated that J.F. had medical insurance coverage here in Arkansas, through ARKids, and that Mr. Scorza had covered all remaining expenses. He also testified that he and his mother provided J.F.’s religious instruction, although he was unable to recall the name of the church that they attended. On cross-examination, Mr. Scorza testified that the last order entered in Louisiana gave Ms. Fletcher custody of the children and required him to pay child support to |4her; however, the circuit court clarified that there was no order in place for J.F. Ms. Fletcher also testified. She stated that she currently lived in Metairie, Louisiana, and that she had not previously provided that information to Mr. Scorza. She testified that the child support she had received from Mr. Scorza had been returned to him by means of purchasing items for the children or by transfer into one of his bank accounts. She further testified that she would send items for J.F. that she knew were needed on a regular basis, such as clothing, shoes, and money. She testified that when Mr. Scorza called her to request extra money, she would do her best to send it. She also testified that she spoke with Mr. Scorza’s mother about coming to pick the children up in December. She stated that she often tried to call the house to speak to the children, but no one would answer. She testified that when she then called from a different number than her own, someone would answer the phone. She stated that she did not need Mr. Scor-za to serve as a guardian of J.F. and that J.F. did not need Mr. Scorza to be his guardian. She testified that she was in a position to provide for J.F., as she had recently graduated from nursing school and had accepted an offer as a beginning registered nurse. On cross-examination, Ms. Fletcher testified that she had been to Arkansas nine or ten times to see the children. She testified that she was currently living with her fiancé and that they slept in the same room together when the children were there. At the conclusion of the hearing, the circuit court continued the order of temporary guardianship in favor of Mr. Scorza for ninety days. On April 15, 2008, the circuit court held |fia hearing regarding a permanent order of guardianship. During that hearing, Mr. Scorza’s mother, Barbara, testified that Mr. Scorza and Ms. Fletcher moved in together in 1998 or 1999 in New Orleans, Louisiana. She testified that Mr. Scorza moved back in with her in 2005 and that, at that time, the children would spend the weekends with them. She testified that, several months later, they also started spending the nights throughout the week with them. She testified that this arrangement continued for a few months until they fled New Orleans. Mr. Scorza testified that he “broke up” with Ms. Fletcher in 2003. He testified that, at that time, the children came over for the weekends, but, in 2005, the children began coming over at night, when Ms. Fletcher started working overnight. He stated that Ms. Fletcher would pick the children up in the morning, take them to school, pick them up from school, and bring them to him around 9:00 p.m. Mr. Scorza acknowledged that Ms. Fletcher sent birthday and Christmas gifts to J.F. and that she called the children “every single day.” He further testified that it was about six or seven months prior to Katrina that he began watching the children overnight while Ms. Fletcher worked. Ms. Fletcher also testified, stating that she was a lifelong resident of New Orleans and that both she and Mr. Scorza lost their respective homes during Katrina. She testified that because she was in law enforcement at the time of Katrina and was required to stay, she and Mr. Scorza agreed that he would take the children and flee the city. She testified that they thought that the relocation ]vould be temporary, but that Mr. Scorza found somewhere to live |fiand somewhere for the children to go to school. She stated that because the children’s school in New Orleans had been destroyed and its school system was in disarray, she agreed with Mr. Scorza that it was in the best interest of the children to be in school in Arkansas. Ms. Fletcher testified that while Mr. Scorza was with the children in Arkansas immediately following Katrina, she lived at New Orleans’s City Hall for a week and a half and then lived on a cruise ship for approximately seven months. During that time, she said, she received a letter from a nursing school notifying her of her admission thereto in April. She testified that she and Mr. Scorza agreed that he would keep the children until she was able to finish school “to better the situation for the children.” She testified that she graduated in December 2007 and that when she asked Mr. Scorza to prepare the information needed to register the children in the New Orleans schools, he refused. Ms. Fletcher testified that she was currently an orientee staff nurse and that she worked three days a week in twelve-hour shifts. She testified that she would adjust her schedule as needed when J.F. was returned to her. She testified that she referred to Mr. Scorza as J.F.’s father and that J.F. considered him his father. On April 17, 2008, the circuit court issued a letter opinion, setting forth the issues and its determination thereof. On May 2, 2008, the circuit court memorialized that letter opinion in its order appointing Mr. Scorza guardian of J.F.’s person and estate. In it, the circuit court made the following pertinent findings: 8. Angie Fletcher is the natural mother of [J.F.]. Petitioner, Kevin Scor-za, is not related by blood to [J.F.], but stands in loco parentis to [J.] having acted as the only |7“father figure” [J.] has ever known. Mr. Scorza is not a true third-party petitioner seeking guardianship of [J.]. Kevin Scorza treats [J.] as his son, and [J.] views Mr. Scorza as his father. Angie Fletcher acknowledges this relationship. Mr. Scorza is not someone who can provide extra financial benefits and a lifestyle in excess of that offered by the natural mother. Mr. Scorza and Ms. Fletcher are on equal footing financially. This Court considers Mr. Scorza as an equal to the natural mother in his relationship with [J.]. 4. In August 2006, due to the threat of Hurricane Katrina, Kevin Scorza evacuated New Orleans with [J.F.] and two other minor children born to Angie Fletcher and him, namely, [A.S.] and [K.S.]. Ms. Fletcher agreed that Mr. Scorza should leave New Orleans with [J.]. Initially, the parties believed the evacuation would only be for a few days, but after Hurricane Katrina struck New Orleans, it became apparent to the parties that the evacuation would be for an extended period of time. [J.F.] remained in Petitioner’s care by agreement of Angie Fletcher. 5. Angie Fletcher worked in law enforcement at the time of Hurricane Katrina and as a condition of her employment, was required to remain in New Orleans after the hurricane. By the end of 2005, Ms. Fletcher could have come to Arkansas and retrieved her children but chose to remain in New Orleans and leave [J.] to the care of Mr. Scorza. 6. Ms. Fletcher left [J.] in Mr. Scor-za’s care by agreement from August of 2005 until December of 2007 when she came to North Little Rock and took all three children from Mr. Scorza’s home. Ms. Fletcher took [J.] with no notice to Mr. Scorza but with the understanding [J.] would be returned to Arkansas after the Christmas Break from school. Ms. Fletcher informed Mr. Scorza shortly after Christmas 2007 that the children would not be returning to Arkansas. 7. From August 2005 to the present, Kevin Scorza has provided and met [J.]’s educational needs and his medical and dental needs. Mr. Scorza and his mother, Barbara Scorza, have provided [J.] with religious training and have attended church regularly with him since January 2007. 8. Prior to August 2005 and until late fall, 2007, Kevin Scorza paid child support of $367.00 a month to Angie Fletcher for the support of [A.S.] and [K.S.]. Ms. Fletcher provided money for birthdays, Christmas presents, and on occasion at the request of Mr. Scorza, money for the needs of the children. Ms. Fletcher bought clothing, toys and gifts for [J.] for birthdays, Christmas and on other occasions. There is no court order for the support of [J.] between Angie Fletcher and Kevin Scorza. | sThere is no proof that Ms. Fletcher provided any support for [J.] to Mr. Scorza on a regular basis. Mr. Scorza has provided the majority of support for [J.] from August 2005 to date. Ms. Fletcher has provided no support to Kevin Scorza for [J.] since the temporary hearing in this matter on January 10, 2008. 9. Kevin Scorza initiated action in September 2007 to terminate his child support obligation owed to Angie Fletcher. Child support payments from Mr. Scorza to Ms. Fletcher were terminated in December 2007. Two weeks after the child support payments were terminated, Ms. Fletcher came to Arkansas and picked up all three children. 10. Kevin Scorza is qualified and suitable to serve as [J.]’s guardian pursuant to Ark.Code Annot. § 28-65-210. Angie Fletcher delegated her parental responsibilities to Kevin Scorza for the care, custody and control of [J.F.] from August 2005 until December 2007. 11. While Ark.Code Annot. § 28-65-210(a) grants preferential status to the parents of a child, this preference is only one factor that the court must consider in determining who will be the most suitable guardian for the child. Any inclination to appoint a parent must be subservient to the principal that the child’s best interest is of paramount consideration. Freeman v. Ruston [Rush-ton], 360 Ark. 445, 202 S.W.3d 485 (2005). The child’s best interest is of paramount consideration, both in custody and in guardianship situations. Freeman, supra. [[Image here]] 15. In Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991), the Arkansas Supreme Court cited Black’s Law Dictionary (5th ed.1979) defining “in loco parentis” as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties and responsibilities.” 16. The key issue before the Court and the Court’s primary concern in this case is [J.]’s best interest. 17. Although the parties initially thought the arrangement would last for only a few days or weeks, this arrangement has lasted now for well over two years. Kevin Scorza has adequately provided for the needs of [J.] since August 2005. 18. Mr. Scorza, his mother, Barbara Scorza, Mr. Scorza’s 85 year old grandmother and the two Scorza children have been the family [J.] has known and 13loved for the last two years. Separating [J.] from this family environment and his two half siblings is not in [J.]’s best interest. 19. Ms. Fletcher is not suitable to serve as the parent having custody of [J.]. She has made a conscious decision to delegate her parental responsibilities, duties and obligations to Kevin Scorza. When Mr. Scorza took steps to and finally did stop paying child support for the children, only then did Angie Fletcher seek to regain custody of her son, [J.]. The timing of the termination of child support and the taking of [J.] from the family and the home he had known for the last two plus years, cannot be overlooked by this Court. 20. Angie Fletcher has not demonstrated, even by a preponderance of the evidence, that she has contributed significantly to the financial support of [J.] since he has been in Kevin Scorza’s custody. Although Ms. Fletcher purchased clothing and gifts and she did provide money for these items, at Christmas and on other occasions when Mr. Scorza made requests of her for financial assistance, testimony before this Court reveals that she did so with money provided her by Mr. Scorza in the form of child support he was paying to her for the two children who were actually in his care. There is no proof that Ms. Fletcher contributed to the support of [J.] with any funds of her own. Every parent has a moral and legal obligation to support a child, even absent a court order to do so. 21. A fit parent would not delegate her parental responsibility to someone only so long as it benefitted her financially. A fit parent would not seek to regain custody of the child only when the financial benefit terminated, all to the detriment of the child. Angie Fletcher is neither fit nor suitable to serve as [J.]’s guardian or custodial parent. 22.A guardianship is necessary to protect the health, safety and welfare of [J.F.]. Specifically noting that it was in the best interest of J.F., the circuit court granted Mr. Scorza’s petition for guardianship. Ms. Fletcher now appeals. Ms. Fletcher argues that the circuit court erroneously entered the order of guardianship without sufficient evidence that she, the natural parent, was unfit or that the guardianship was necessary. She states that she in no way abandoned J.F., as she fully intended to retrieve her hochildren once she reestablished her life in New Orleans. She disputes the circuit court’s finding that she could have retrieved her children as early as the end of 2005, stating that the city was not a suitable place for children to live at that time. She further disputes the circuit court’s findings that she was not suitable to serve as a parent because she delegated her parental duties to Mr. Scorza and that she was unfit because she did not contribute financially. Mr. Scorza responds that significant evidence was presented to the circuit court that Ms. Fletcher delegated her parental duties to Mr. Scorza. He further states that no evidence was presented to support a finding that Ms. Fletcher contributed significantly to the financial support of J.F. from August 2005 until December 2007. He maintains that, after considering the presumptions and protections afforded parents, the circuit court correctly found that any presumption that Ms. Fletcher was the preferred guardian was rebutted by her failure to discharge her parental duties. Finally, he asserts the circuit court correctly found that it was in J.F.’s best interest that Mr. Scorza be appointed his guardian. This court reviews probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. See 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. See id. When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. See id. |nArkansas Code Annotated § 28-65-210 (Repl.2004) provides: 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. Where the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. See Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000). Preferential status in a guardianship proceeding may be given to the natural parents of a child pursuant to Ark. Code Ann. § 28-65-204(a) (Repl.2004). See id. That section provides that “[t]he 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). A plain reading of that section demonstrates that only a natural parent who is both qualified and, in the opinion of the circuit court, suitable, shall be preferred over all others to be the child’s guardian; however, the natural-parent preference does not automatically attach to a child’s natural parents. See Blunt, supra. It is within the circuit court’s discretion to make a determination as to whether a parent is qualified and suitable. See Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005). Moreover, the natural-parent preference is but one factor that the circuit court must consider in determining who will be the most suitable guardian for the child. See Blunt, supra. Any inclination to appoint a parent or relative must be subservient to the principle that the child’s interest is of paramount consideration. See Blunt, supra. |12As an initial matter, we note that Ms. Fletcher’s arguments are premised in part on the idea that a natural parent must be proven unfit before a guardianship may be entered in favor of someone other than the natural parent. Indeed, this court has previously observed, in the context of a guardianship case, that “[t]he law prefers a parent over a grandparent or other third person unless the parent is proved to be incompetent or unfit.” Devine, 371 Ark. at 71, 263 S.W.3d at 523 (citing custody cases). And in this case, the circuit court found Ms. Fletcher neither fit nor suitable to serve as guardian of J.F. However, as already noted, section 28-65-204(a) provides a natural-parent preference if the natural parent is qualified, and in the opinion of the court, suitable. The statute makes no mention of whether the natural parent is “fit” or “unfit,” as those terms have been used in custody cases. Moreover, we have previously attempted to distinguish guardianship cases from custody cases: The natural-parent preference referred to by appellant derives from our long-established caselaw in custody matters and from Ark.Code Ann. § 28-65-204(a). While the two preferences are similar, the preference at issue here is the statutory preference, Ark. Code Ann. § 28-65-20I(a). Freeman, 360 Ark. at 449, 202 S.W.3d at 487 (emphasis added). In Freeman, we rejected Freeman’s argument that “the natural-parent preference must prevail unless it is established that the natural parent is unfit,” observing that “[Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), relied on by Freeman,] is a modification-of-custody case, not a guardianship case, governed by the case-law preference, not the statutory preference found in Ark. Code Ann. § 28-65-204(a).” Id. at 451-52, 202 S.W.3d at 488. We, therefore, take this opportunity to | ^clarify that the sole considerations in determining 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. We turn, then, to the merits of the instant case. In order for Ms. Fletcher, as a natural parent, to be preferred over all others for appointment as guardian of J.F., section 28-65-204(a) required that she be qualified, and, in the judge’s opinion, suitable. In addition, J.F.’s best interest was to be considered. Here, the circuit court found that, not only was Ms. Fletcher not suitable, but it was also not in J.F.’s best interest that she be appointed guardian. Specifically, the circuit court found that: (1) Mr. Scorza, his mother, his grandmother, and his other two children were the “family [J.F.] has known and loved for the last two years;” (2) separating J.F. from that family environment and his half-siblings was not in his best interest; (3) Ms. Fletcher made a conscious decision to delegate her parental responsibilities, duties, and obligations to Mr. Scorza; (4) Ms. Fletcher only sought to retrieve J.F. after Mr. Scorza stopped paying child support; (5) Ms. Fletcher had not contributed significantly to J.F.’s financial support since he had been with Mr. Scorza; (6) while Ms. Fletcher purchased clothing and gifts and provided money when requested to do so by Mr. Scorza, she did so with the child-support funds paid to her by Mr. Scorza for the two children actually in his 114care; and (7) Ms. Fletcher was neither fit, nor suitable to serve as J.F.’s guardian.2 Based upon the evidence before it, the circuit court found that Ms. Fletcher was not suitable and that it was in J.F.’s best interest for Mr. Scorza to be appointed guardian. After taking into account all of the testimony presented and the circuit court’s superior position to weigh and assess the credibility of witnesses and their testimony, we are not left with a definite and firm conviction that a mistake was made by the circuit court. Again, in guardianship matters, the natural-parent preference is but one consideration, which is subservient to the principle that the child’s best interest is the paramount consideration. In light of our standard of review, we affirm the circuit court’s order. Affirmed; court of appeals reversed. CORBIN, WILLS, and SHEFFIELD, JJ., dissent. Footnotes [1] The record reflects that J.F., who is not Mr. Scorza’s biological child, has two half-siblings, whose father is Mr. Scorza and whose mother is Ms. Fletcher. [2] While the circuit court found Ms. Fletcher unfit, which we today acknowledge is not the requisite consideration under the statute, we need not remand this matter because it is clear that the circuit court also found Ms. Fletcher unsuitable, which was the requisite determination under Ark.Code Ann. § 28-65-204(a).