Donley v. Donley

Decision Date09 June 2016
Docket NumberNo. CV–15–824,CV–15–824
Citation493 S.W.3d 762,2016 Ark. 243
PartiesTemika Donley, Appellant v. Lakitcher Donley, Appellee
CourtArkansas Supreme Court

2016 Ark. 243
493 S.W.3d 762

Temika Donley, Appellant
v.
Lakitcher Donley, Appellee

No. CV–15–824

Supreme Court of Arkansas.

Opinion Delivered June 9, 2016


Cross, Gunter, Witherspoon & Galchus, P.C., Little Rock, by: Abtin Mehdizadegan; and Dustin A. Duke, Center for Arkansas Legal Services, for appellant.

Robertson Law Firm, PLLC, Benton, by: Chris Oswalt, for appellee.

KAREN R. BAKER, Associate Justice

This appeal stems from a petition to terminate a permanent guardianship. Appellant, Temika Donley, and appellee, Lakitcher (“Kisha”) Donley, are half sisters. Temika appeals the order of the Pulaski County Circuit Court denying her petition to terminate Kisha's guardianship over Temika's daughter, M.B.

I. Facts and Procedural History

On April 9, 2012, Kisha filed a petition for temporary guardianship of M.B. and a motion for an expedited hearing. The parties allege that Temika was engaged in an abusive romantic relationship with Donald Beasley and that Beasley was emotionally and physically abusive to both Temika and M.B. On April 17, 2012, the circuit court

493 S.W.3d 764

conducted a hearing on the temporary guardianship. On May 1, 2012, the circuit court entered an order granting temporary guardianship of M.B. to Kisha, finding that Temika was not a fit parent and that Kisha was qualified to serve as guardian. On July 2, 2012, with Temika's consent, the court entered a permanent guardianship. In the circuit court's order, it is stated that the parties and their attorneys appeared on that day and that the parties “acknowledged their agreement to this action by way of their signature thereon.” The order also states that “the child in this case is in need of a guardian to protect her health and welfare.” The circuit court's order contained no finding of “unfitness.” On October 2, 2013, Temika filed a petition to remove the guardianship contending that the guardianship was no longer necessary and revoking her consent.

On July 3, 2014, the circuit court conducted a hearing on the petition. At the hearing, Dr. Adam Benton, a licensed psychologist, testified about his counseling sessions with M.B. Dr. Benton testified that M.B. suffers from posttraumatic stress disorder as a result of her exposure to Beasley's domestic abuse of Temika. Dr. Benton testified that he treated MB with cognitive-behavioral therapy and said that she has made great progress and reduced her anxiety. Dr. Benton further testified that M.B. and Temika have a healthy relationship; however, he stressed that any future contact with Beasley or knowledge that Temika and Beasley were communicating would be detrimental to M.B. Dr. Benton stated that it would be best for M.B. if Beasley were not involved in their lives at all.

Temika testified that she believed that the guardianship was no longer necessary and that it was in M.B.'s best interest to be with her. Temika testified that she had not been in a relationship with Beasley since October 2012. Temika testified that she had completed online courses from Heritage College and had obtained degrees in being a medical assistant and x-ray technology assistant. She further testified that was planning to obtain an LPN license. She had been working at UAMS and had just started a new job at Arkansas Employee Benefits where she would make more money and receive health benefits for her and M.B. Temika further testified that she had completed parenting classes and that she had started going to counseling the month after she had filed the petition to terminate the guardianship. Temika described instances in which Kisha had not been cooperative with her in communicating about M.B.'s activities and visitation. She also spoke of an incident that took place at her mother's house when Kisha had called the police. Temika was presently attending the same church that she and Beasley had attended while they were dating. She claimed that Beasley was in Chicago.

On cross-examination, Temika admitted that she had attended the graduation ceremony of Beasley's mother one month prior to this hearing. She had also attended a church picnic that Beasley had also attended. In addition, she was confronted with comments she made on Beasley's Facebook page, including the statements, “Oooooweee he's cute. Will you be my chocolate drop?”; “Yea he cute. He had tha big head that day. Lol”; “Okay let me stop. My boo cute!! Lol”; “U must be bored? Still cute!!!” These statements were dated April 17, September 14, and October 5, 2013, right before she filed the petition to terminate the guardianship. Kisha's counsel introduced additional screenshots of Beasley's Facebook page with comments from Temika dated October 25, 2013, and June 10, 2014:

493 S.W.3d 765
Hey hey hey y'all leave my baby alone!!! Gone boo and represent where u from!!! Lol”;

Lol he ain't nothing but a flight away!!!! Y'all gone look up and say what she doing here. That's my hunnie bun. Lol I gots to stick up fa him

Absolutely Beautiful. Love it!!

Finally, on June 7, 2014, she wrote, “Boo, when are you coming home?” This comment was made after Beasley had posted on his Facebook page that he was traveling from Chicago to Little Rock. Temika claimed that she had since blocked Beasley from her Facebook page and did not use Facebook any longer.

Next, Jayla Davis, a counselor at Women and Children First, testified about her counseling sessions with Temika. She testified that Women and Children First is a nonprofit domestic-violence shelter that provides education and emotional support to battered women. She testified that after Temika had filed the petition to terminate the guardianship, Temika solicited its services in December 2013. Davis stated that Temika was highly motivated and determined to end her violent relationship with Beasley. She testified that Temika has made progress but noted “there is still work to be done.” Davis testified that she and Temika discussed her June 7, 2014 comment on Beasley's Facebook page and that Temika expressed remorse for making the comment. Davis also testified that she thought Temika would continue to be successful in maintaining distance from Beasley if she kept her support system of family, friends, and counselors.

Temika's friend, Jennifer Holloway, testified that Temika was not in a relationship with Beasley in June 2014. She further testified that Temika reported to her that Beasley had used Temika's Facebook account. She also testified about an incident in which Beasley had posted a comment on another man's Facebook page asking whether the man had a romantic relationship with Temika. She testified that she thought that Temika had deleted her Facebook account or that Temika had blocked Beasley.

Temika and Kisha's mother, Clarice Cooper, testified that in 2012, she believed Kisha's guardianship of M.B. was necessary, and she stated that she gave Kisha $24,000 for M.B.'s care. However, Cooper did not think the guardianship was still necessary at the time of the hearing. She stated that she had not seen Temika with Beasley since 2012. Cooper also discussed the altercation between Kisha and Temika when the police were called. She stated that the incident escalated because of an argument between her and Kisha, not Temika.

After Temika rested her case, Kisha moved for a directed verdict and asserted that Temika's petition to terminate the guardianship should be denied. She argued that Temika had failed to show that termination of the guardianship was either in the best interest of M.B. or that the guardianship was no longer necessary. The court took the motion under advisement.

On July 21, 2014, the circuit court issued a letter opinion. The court granted Kisha's motion for directed verdict, finding that the guardianship was still necessary and that termination of the guardianship was not in M.B.'s best interest. On August 11, 2014, the circuit court entered an order incorporating its findings. Temika timely appealed to the court of appeals, which affirmed. Donley v. Donley, 2015 Ark. App. 496, 470 S.W.3d 701. Temika petitioned this court for review, and on November 12, 2015, we granted the petition. When we grant a petition for review,

493 S.W.3d 766

we consider the appeal as though it had originally been filed in this court.

On appeal, Temika presents three points: (1) the circuit court applied the wrong legal standard for the termination proceeding because it incorrectly applied the findings of the temporary order to the permanent guardianship; (2) the circuit court erred in granting Kisha's motion for directed verdict; and (3) Facebook evidence is inadmissible for lack of authentication and its admission was not harmless error.

II. Standard of Review

We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273. 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 probate judge to determine the credibility of the witnesses. Id.

III. Points of Appeal

A. Termination of Guardianship

...

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