Dietz v. Bevill, 82-129

• Decision Date: 12 July 1982
• Docket Number: No. 82-129,82-129
• Citation: 637 S.W.2d 555,276 Ark. 500
• Parties: Richard DIETZ, Administrator of Adoption, Arkansas Social Services Department, Appellant, v. Michael BEVILL and Mary Edith Bevill, Appellees.
• Court: Arkansas Supreme Court

Page 555

637 S.W.2d 555

276 Ark. 500

Richard DIETZ, Administrator of Adoption, Arkansas Social

Services Department, Appellant, v. Michael BEVILL and Mary Edith Bevill, Appellees.

No. 82-129.

Supreme Court of Arkansas.

July 12, 1982.

Breck G. Hopkins, Batesville, for appellant.

Highsmith, Gregg, Hart & Farris by Josephine Linker Hart, Batesville, for appellees.

HOLT, Justice.

The Arkansas Social Services petitioned the probate court for an appointment as guardian with the power to consent to the adoption of appellee Michael Bevill's two minor children, Carri LeeAnn and Teresa Michelle, 7 and 9 respectively. Their mother is deceased. These two children have been in custody of the Arkansas Social Services from December, 1978, until the time of the hearing in their action in August, 1981. The court struck the responsive pleadings filed on behalf of appellee Michael Bevill and appellee Mary Edith Bevill, the paternal grandmother, insofar as such pleadings related to custody, habeas corpus, and Mary Edith Bevill's prayer that she be granted guardianship. However, the court granted her prayer to intervene. The petition of Arkansas Social Services to be appointed guardian with consent to adoption was denied as the court found the petitioner failed to meet its burden by clear and convincing evidence.

The appellant first contends that the probate court erred in disregarding the best interests of the children. Upon hearing all the testimony, the court stated:

There's been some allusions to the fact that--or arguments to the effect that the court in making a decision ought to consider the best interests of the child and that is as opposed to being with the natural parents as opposed to being in an adoptive home. That's a laudable purpose, but that's really not the issue in this case, the best interests of the children, but it always has to be in the back of the court's mind.

We feel the court properly followed the statutory framework set forth in Ark.Stat.Ann. § 56-128 (Supp.1981), which provides "that before entering a guardianship order the court shall find from the evidence that .... the surviving parent .... is unfit to have the child for any of the following reasons ...." It appears that the legislature intended that the court first make the determination that the parent is fit or unfit. If found unfit, then the court addresses the issue of the best interests of the child.

Appellant next contends that the court erred in permitting the intervention of Mary Bevill and considering her testimony which was not relevant or material to the petition before it. We cannot agree. It is true that Mrs. Bevill, the paternal grandmother, had no court ordered visitation rights nor was she acting in loco parentis. However, she had previously assisted her son in caring for the children in her home for about a year and a half based on a custody award of the juvenile court. She was planning to help him in the future should Michael gain custody of the two children. It appears she has demonstrated a sufficient interest in the children to entitle her to intervene and testify. Suffice it to say that appellant has not demonstrated any prejudice by the intervention which was limited to the testimony of Mrs. Bevill.

Appellant finally asserts that the court erred in finding that the Social Services' proof falls short of establishing by clear and convincing evidence that appellee Michael Bevill is an unfit parent. We must agree. Appellant...