Troeskyn v. Herrington (In re S.H.)

• Decision Date: 31 May 2012
• Docket Number: No. 11–1107.,11–1107.
• Citation: 409 S.W.3d 307,2012 Ark. 245
• Parties: In the Matter of the GUARDIANSHIP OF S.H., a minor. Tamera Troeskyn, Appellant v. Larry Herrington and Donna Herrington, Appellees.
• Court: Arkansas Supreme Court

2012 Ark. 245

409 S.W.3d 307

In the Matter of the GUARDIANSHIP OF S.H., a minor.Tamera Troeskyn, Appellant

v.Larry Herrington and Donna Herrington, Appellees.

No. 11–1107.

Supreme Court of Arkansas.

May 31, 2012.

Unconstitutional as Applied

West's A.C.A. § 28–65–401.

Teresa Wineland, Bonnie Joan Johnson, Williams & Anderson PLC, Little Rock, for Appellant.

Christina Boyd, Rufus T. Buie, III, Boyd & Buie, DeWitt, for Appellees.

JIM GUNTER, Justice.

Appellant Tamera Troeskyn appeals from an order of the Arkansas County Circuit Court denying her petition to terminate guardianship. She asserts on appeal that Ark.Code Ann. § 28–65–401 (Repl.2012), is unconstitutional as applied to her because it impinges on her fundamental liberty interest with respect to the care, control, and custody of her child; that the circuit court erred in denying the petition to terminate the guardianship; that the circuit court erred in granting a motion for psychological evaluation; and that the circuit court erred in admitting the records and reports of Lesa Doan and Dr. Steven Shapse into evidence. We assumed jurisdiction over this case as one involving issues of federal constitutional interpretation pursuant to Ark. Sup.Ct. R. 1–2(b)(3).

S.H. was born on July 1, 2005, to Scott Herrington and Tamera Troeskyn when Tamera lived in Minnesota. Thereafter, Tamera moved to Stuttgart, Arkansas, into a house with Scott next door to his parents, Donna and Larry Herrington. On August 19, 2008, the Herringtons filed a petition for guardianship of S.H., alleging that Tamera had been granted primary physical custody of S.H. on April 21, 2008, and that since that time, she had cohabitated with persons of the opposite sex; was unemployed; had moved her residence at least six times since January 1, 2008; had been kicked out of her current home at least once; had made statements indicating that she wanted to move back in with the Herringtons to provide stability for S.H.; and had recently been released from drug rehabilitation. An ex parte emergency temporary order of guardianship, indicating that Tamera had subjected the minor child to unstable living conditions by cohabitating with members of the opposite sex and had no visible means of supporting the child, was entered on August 20, 2008. On October 1, 2008, the court entered a temporary order of guardianship continuing the Herringtons' appointment as guardians of S.H. In the order, the court ordered unsupervised visitation for Tamera, supervised visitation for Scott, and mandatory drug testing for all parties to the action. The order noted that Tamera had recently married Tory Brickey.

At a hearing held on November 3, 2008, Tamera, who appeared pro se, consented to a permanent guardianship. Scott had waived appearance and consented to the guardianship previously. The court entered an order of guardianship on November 24, 2008, noting that Tamera had recently instituted divorce proceedings against Tory Brickey and that she was again residing with Scott. The order stated that “by agreement of the parties” the guardianship of S.H. was granted to the Herringtons.

On June 25, 2010, Tamera filed a petition to terminate guardianship asserting that the guardianship was no longer necessary; that it was in S.H.'s best interest for the guardianship to be terminated; that Tamera was withdrawing any consent she had given to the establishment of the guardianship; that Tamera was a fit parent who was ready and willing to care for S.H.; that failure to terminate the guardianship would violate Tamera's common-law and constitutional rights to parent; that the guardianship statutes, specifically Ark.Code Ann. § 28–65–401, violated due process under the Fifth and Fourteenth Amendments to the United States Constitution and article 2, sections 8 and 21 of the Arkansas Constitution because the statutes do not require proper consideration of parental rights; and that because Tamera lived in Minnesota, termination of the guardianship was appropriate under Ark.Code Ann. § 28–65–401(b)(2).¹ The Herringtons responded to the petition to terminate, denying Tamera's claims, and filed a motion for psychological evaluations claiming that Tamera's psychological fitness and ability to parent were in question. The Herringtons asked the court to direct that all interested parties—Larry, Donna, Tamera, and Tamera's mother, Marcia Dally—submit to a psychological evaluation. Tamera objected to a psychological evaluation on the basis that she had not put her mental condition in controversy and that the Herringtons failed to show good cause to require an examination. Alternatively, Tamera asked the court to also require a mental evaluation of Scott Herrington and to allow Tamera to be evaluated near her home in Minnesota. The circuit court granted the motion for psychological evaluations.

The court held a hearing on the petition to terminate on April 8, 2011. ² Tamera testified that she lived in Minnesota in a house that she shared with her sister and that she worked as a certified nursing assistant in an elder-care facility. She acknowledged that she had agreed to the guardianship in 2008 and admitted that at that time, her life was unstable, she was not working, she lived with the Herringtons, and she could not provide for S.H. financially. Tamera stated that when she consented to the guardianship, she believed that once she was stable, the guardianship would be terminated. Shortly after the permanent guardianship order was entered, Tamera moved back to Minnesota. On several occasions after the move, she visited S.H. in Arkansas and S.H. came to Minnesota to visit. However, after filing the petition to terminate the guardianship in August 2010, it became difficult to contact the Herringtons and schedule visitation. Tamera stated that since filing the petition, she was allowed to visit S.H. for about a week in February 2011. Tamera testified that she was not taking illegal drugs and had been voluntarily taking random drug tests in Minnesota.

Dr. Steven Shapse, who performed the psychological evaluation of Tamera, testified that he did not find any “red flags” with regard to her ability to be a fit parent.Dr. Shapse stated that he followed standard procedure in conducting the evaluation, including a comprehensive interview, a battery of standardized tests, a consultation with Tamera's current therapist, and a written report summarizing his evaluation. He testified that nothing in his findings suggested Tamera suffered from a mental health condition that would impair her ability to parent, and she did not suffer from a major mental illness. Additionally, there was no indication of poor impulse control and nothing to suggest she was not within a normal spectrum of well-functioning individuals.

Larry Herrington testified that he and his wife, Donna, had been S.H.'s guardians for nearly three years and that during that time, S.H. had been potty-trained, learned to read and write, and participated in dance classes. He testified that in his opinion, S.H. had bonded with him and his wife. He stated that Donna took S.H. to school most mornings and picked her up; Donna also took S.H. to the majority of her doctors' and counseling appointments. He testified that S.H. had been allowed to visit Tamera in Minnesota but that after the visits, S.H. was often distressed. Larry admitted that he was communicating less frequently with Tamera than he had been the year before and that he had purposefully decreased Tamera's visitation with S.H. because her counselor had recommended that she not travel to Minnesota. He felt that Tamera was inconsistent and not prepared to be a parent.

Lesa Doan, a licensed social worker, testified that she had provided counseling services for S.H. since March 5, 2010. Doan stated that when she first saw S.H., she was clingy and had trouble using the restroom. Over the past year, she had made progress and developed better self-esteem. However, Doan noted that she became concerned in April 2010 after S.H. returned from a Minnesota visit and had three difficult bowel incidents. Doan stated that S.H. became more clingy during this time. Doan recommended to Larry that Tamera's visits with S.H. take place in Arkansas and invited Tamera by letter to participate in S.H.'s therapy. Doan testified that additional setbacks included the manifestation of fear and threatening themes during S.H.'s play therapy. Doan stated that once S.H. started school in the fall of 2010, she became more independent and outgoing. In her opinion, Doan believed it to be in S.H.'s best interest to continue living with her guardians.

At the close of the testimony, the court took the matter under advisement. On July 13, 2011, the circuit court entered an order denying the petition to terminate the guardianship, finding that as applied in this case, Ark.Code Ann. § 28–65–401(b)(3) was not an unconstitutional violation of due process under either the federal or state constitution; that Tamera carried the burden of proof in the termination proceeding; that the guardianship of S.H. was still necessary; and that termination of the guardianship would not be in her best interest at this time. The court ordered that Tamera's visitation with S.H. be expanded as much as possible to create a stronger bond between mother and daughter, giving explicit instructions for such expansion, and that Tamera begin cooperating and participating in S.H.'s therapy sessions to whatever extent possible. Tamera filed a timely notice of appeal from the circuit court's order on August 9, 2011.

I. Constitutionality of Ark.Code Ann. § 28–65–401

In her first point on appeal, Tamera asserts that, as applied to her, the guardianship termination statute, codified at Ark.Code Ann. § 28–65–401, is unconstitutionalbecause it impinges on her fundamental liberty interest with respect to the care, custody, and control of her child as articulated in Troxel v. Granville, 530 U.S. 57, ...