RITA W. GRUBER, Judge.
David Lineham appeals from the circuit court's order denying his petition to terminate a guardianship over his daughter, W.L. David argues on appeal that the circuit court clearly erred in refusing to terminate the guardianship and in allowing W.L.'s maternal grandparents to continue as guardians. We affirm the circuit court's order.
W.L. was born on March 31, 2008, to David Lineham and Sarah Hyde in Virginia. At the time, they were living with David's parents in Mount Vernon, Virginia. In July 2009, they moved into a nearby apartment in Alexandria, Virginia. W.L. also spent a considerable amount of time with Sarah's parents, appellees Anna and Dennis Hyde, who both lived and worked in the Washington D.C. area but also maintained a residence on their farm in Logan County, Arkansas.
The relationship between Sarah and David was tumultuous. Although there is some dispute regarding the reasons a guardianship was sought, David and Sarah both signed consents allowing appellees to have a guardianship over W.L. on September 25, 2009. David and Sarah permanently ended their relationship on October 31, 2009, and the order granting the guardianship was entered on December 21, 2009. Shortly thereafter, appellees moved with W.L. to their farm in Logan County, where W.L. has continued to live with them.
On September 25, 2010, David married Danielle. On December 27, 2010, David filed a petition to terminate the guardianship over W.L. The circuit court held a hearing on January 25, 2012, and entered an order denying David's petition on April 9, 2012.
David did not appeal from the first order denying his petition, but he immediately began exercising visitation, visiting W.L. in Arkansas on weekends and exercising his six-week summer visitation with W.L. in Virginia. Evidence showed that David spent money traveling to Arkansas to visit W.L. and purchasing clothes and toys for her. He did not, however, provide any direct financial support to appellees. In October 2012, Sarah and David filed competing petitions to terminate the guardianship and in December 2012, they filed competing petitions for custody in the event the court terminated the guardianship. The petitions for custody were consolidated into the guardianship. The court held a hearing in August 2013. At the time of the hearing, Sarah was living in a trailer
The court continued the guardianship, making the following specific findings:
The court then dismissed David's and Sarah's petitions to terminate, ordered both to pay child support, continued David's standard visitation with W.L., and incorporated its attached letter opinion by reference. In its letter opinion, the court recited the applicable law and burdens of proof found in our supreme court's opinion In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307.
Our appellate courts review guardianship proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Furr v. James, 2013 Ark.App. 181, 427 S.W.3d 94. 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 the trial court to determine the credibility of the witnesses. Id. Moreover, in cases involving children, we afford even more deference to the trial court's findings because there is no other case in which the superior position, ability, and opportunity of the court to observe the parties carries a greater weight than one involving the
On appeal, David argues that the circuit court's order refusing to terminate the guardianship and allowing W.L.'s maternal grandparents to continue as guardians rather than allowing him, W.L.'s father, to have custody is clearly erroneous. He specifically challenges the court's determination that it had found him to be unfit in its first order; that he failed to present sufficient evidence that the guardianship was no longer necessary; and that appellees presented sufficient evidence to overcome the presumption that termination of the guardianship was in W.L.'s best interest.
We turn first to the governing law. Arkansas Code Annotated section 28-65-401(b)(3) (Supp. 2013) provides that a guardianship may be terminated by court order if "the guardianship is no longer necessary or for the best interest of the ward." In applying this statute, our supreme court has held that fit parents do not relinquish their fundamental liberty interest in raising their children by consenting to a guardianship and, thus, are entitled to the Troxel presumption in a proceeding to terminate that guardianship.
Id. ¶ 15, 409 S.W.3d at 316-17.
In order for the presumption to apply, a parent must not have been deemed unfit. David argues that the circuit court erred in finding that he had been found unfit in the court's first order. Although the court stated that it had previously found David to be unfit in its first order, the court did not rely on that finding and instead applied the law set forth in In re Guardianship of S.H. as if David were a fit parent. Indeed, in its letter opinion, the court reasoned that since it had not made a fitness determination regarding Sarah in its previous order,
The court continued in its letter opinion, finding that neither Sarah nor David presented proof as to what the conditions were at the time the guardianship was
David next argues that the circuit court erred in finding that he did not put forth sufficient evidence that the guardianship was no longer necessary. In support of his argument, he points to testimony of one of the guardians, Dennis, who thought the conditions necessitating the guardianship had been removed. Dennis's testimony was made in response to whether he thought his daughter, Sarah, was ready to parent W.L. Dennis did not oppose terminating the guardianship if Sarah were to be awarded custody. But he made it clear that he had concerns with David and thought that the guardianship was still necessary with regard to David. Anna testified similarly. Although there was no testimony regarding precisely what conditions necessitated the guardianship, the petition for guardianship stated with regard to David that "the father of the minor child does not provide support or income to the mother" and that the mother was without suitable income to support herself or the child. The petition also stated that the child did not have regular medical care or a "consistent and stable home, nourishment, and maintenance."
David testified that he could provide and was providing medical insurance and that his income was sufficient to support W.L. But the court noted that, in spite of his income, David was not providing and had never provided any direct financial support to the guardians for W.L. Despite appellees' request that he help them with some of W.L.'s medical bills, David provided no funds at all. David argues that no court order required him to pay child support, apparently indicating the court was wrong to consider his failure to support W.L. in its decision. The law in Arkansas has long been that a parent has a legal duty to support his child, regardless of the existence of a support order. Fonken v. Fonken, 334 Ark. 637, 642, 976 S.W.2d 952, 954 (1998); see also McGee v. McGee, 100 Ark.App. 1, 6, 262 S.W.3d 622, 626 (2007) (stating that child support is an obligation owed to the child and, even in the absence of a court order requiring a parent to support his or her minor child, a parent continues to have a legal and moral duty to do so). We hold that the circuit court's finding on the issue of the continuing necessity for the guardianship is not clearly erroneous.
In spite of the circuit court's failure to find that the parties put forth sufficient evidence that the guardianship was no longer necessary, the court still examined the evidence to determine whether terminating the guardianship was in W.L.'s best interest. David argues that the court's finding that termination of the guardianship was not in W.L.'s best interest was clearly erroneous. In examining best interest, the court recognized that David had exercised his visitation during the year and a half before the hearing and that he had provided clothing and toys to W.L. The court also noted that he had married and that he was currently earning at least $5,000 per month. But the court was troubled by David's seeming inability to communicate or interact favorably with Sarah and W.L.'s guardians. The court pointed to testimony that when David attended W.L.'s kindergarten graduation, he and his mother refused to sit in seats with the guardians and Sarah and chose to remain in the back of the room. The court also noted that David's wife, Danielle, admitted
The court also recognized that W.L. was five-and-one-half years old and had lived with appellees since she was five months old. The court found that it was not in W.L.'s best interest to terminate the guardianship. Credibility of the witnesses is a matter for the circuit court and, in cases involving children, we afford even more deference to the trial court's findings because there is no other case in which the superior position, ability, and opportunity of the court to observe the parties carry a greater weight than one involving the custody of minor children. Ford, 347 Ark. at 491, 65 S.W.3d at 436. Having reviewing the record, we hold that the circuit court's decision was not clearly erroneous.
Affirmed.
Kinard and Brown, JJ., agree.