COURT ARKANSAS OF APPEALS
DIVISION III No. CA08-681 JACKIE DONALD HOFFARTH APPELLANT V.
Opinion Delivered APRIL 1, 2009
APPEAL FROM THE BENTON COUNTY CIRCUIT COURT, [NO. PR-2005-74-4] HONORABLE JOHN R. SCOTT, JUDGE AFFIRMED
ANNA HARP APPELLEE
WAYMOND M. BROWN, Judge
This case involves the guardianship of Jackie Dane (Jake) Hoffarth. The parties originally agreed that Jakes father, appellant Jackie Donald Hoffarth, would be the guardian of Jakes person and estate. Jakes mother, appellee Anna Harp, sought to replace Jackie as Jakes guardian. After hearing testimony from the parties and their relatives, the court granted Annas petition to substitute her as guardian. Jackie appeals from the circuit courts order. He contends that the circuit court used the wrong standard in determining whether he should be removed as guardian. He also challenges the ultimate decision to substitute Anna as Jakes guardian. We affirm. Jake was diagnosed with Williams syndrome at age seven. According to testimony from the parties, Williams syndrome is a rare chromosome disorder that results in the
absence of elastin, which is part of many internal organs, including the heart, kidneys, and bladder. The lack of elastin contributes to aortic and pulmonary stenosis, renal insufficiency, bladder incontinence, and knee problems. Children with Williams syndrome have widely spaced teeth, a big smile, and big lips. They also have very sensitive hearing, an automatic gag reflex, and a very selective diet. Jake has heart problems, and his renal panel is not the same as a normal adult. In addition, he has a fused right elbow and has had problems with his right knee. He functions at different ages depending on the scenario. For example, he is a normal adult when working with motors and lawn-maintenance tools, but he functions as a ten-year-old when dealing with family relationships. Jake enjoys working with weed eaters and motors. He also plays the guitar and the drums, and he participated in his schools jazz band. In the words of Jackie, Jake can do almost anything he sets his mind to. Jake was approximately fourteen months old when Jackie and Anna were divorced, and Anna had custody of Jake. Jake attended elementary school in the Springdale School District and was in a totally inclusive educational setting. He finished elementary school in the spring of 2000. Springdale did not have an inclusive setting in middle school, but it was important to Anna for Jake to be in such a setting, as she feared that Jake would mimic the behavior of his peers if placed in a class with only mentally disabled students. At that time, Jackie lived in Gravette. In Gravette, Jake could continue his education in an inclusive setting. Further, Jackies life in Gravette was stable at that time. Accordingly, Jake went to live with Jackie, and Anna regularly exercised visitation. In 2005, Jackie and Anna filed a
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petition for co-guardianship, but because the court would not allow a co-guardianship, the two decided that Jackie would be Jakes guardian. An appropriate order was filed on March 29, 2005. Jake received his high school diploma in 2007. The guardianship and the relationship of the parties went well until Anna began taking issue with Jackies care of Jake. To that end, she filed a petition to substitute herself as Jakes guardian on April 30, 2007. The court held the final hearing on the matter February 1, 2008. Jake was twenty-one years old at the time. Jackie was on the witness stand for a substantial portion of the hearing, and most of the questions were directed toward his care of Jake. While examined by his own counsel, he acknowledged several medical records showing that Jake was in good health. Jackie stated that he had lived in Gravette since 1995 and that he was involved in rodeos and rodeo activities. He was a member of Cowboy Church, which has church services at rodeos. Jake has attended rodeos with him since 2005, and he would stay overnight with Jackie in the trailers at the rodeos. When Jackie is working at the rodeo, Jake is usually in the bleachers with friends. With respect to his care, Jackie testified that Jake bathes himself and that he does not monitor Jakes showers or baths. In her testimony, Anna stated that Jakes hair was usually not cleaned or combed and that he always had dirty fingernails. Though Jackie allowed Jake to bathe himself, Anna stated that she always assisted Jake because he had a hard time reaching and did not get himself clean. Anna was also dissatisfied about the clothes Jake
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would bring when she had him. Anna testified that Jake would only bring one change of clothes despite planning to be with her for four days. She also did not like that Jake wore starched jeans, as they would be uncomfortable due to Jakes diarrhea episodes. Jackie stated that Jake required significant medical attention due to the Williams syndrome. To that end, Jackie pursued special medical training and has been a certified EMT since 2005. He noted that Jake had to see a nephrologist and a cardiologist on a regular basis. Jake was generally expected to present to a nephrologist every six to eight months. He last saw one at Arkansas Childrens Hospital on August 16, 2006. At that time, it was recommended that he be transferred to an adult nephrologist. He did not see another nephrologist until November 27, 2007. Jackie also testified about an emergency appendectomy in May 2005. On the day Jake presented to the emergency room, he had gone to school, but his appendix had already ruptured. He underwent the procedure about four or five hours after arriving at the emergency room. Jackies wife at the time, Debbie, took him to the emergency room that night; Jackie was at work at the time, and she took him to the hospital after calling Jackie to report that he was still in pain. Jackie did not call Anna until 4:00 a.m. In another incident in July 2006, Jakes knee popped out of place while he was at Jackies current wifes house in Vian, Oklahoma. Jackie went to Jake, stretched out his knee, replaced his kneecap, placed him on a bed, and put ice on the knee. The next day, Jackie took Jake to the hospital in Washington County, where Jake was instructed to rest and use
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ice on the knee. Jake went home with Anna after being discharged, while Jackie went to the rodeo. Jake was prescribed physical therapy. He was supposed to go to two sessions for two weeks, but the therapy took five weeks because Jackie rescheduled several appointments. When asked why so many appointments were cancelled, Jackie stated that the only reason he could think of was because Jake did not wake up in time for the early morning appointments. In the end, however, one hundred percent of the goals were met. Due to his Williams syndrome, Jake has difficultly with diarrhea. According to Jackie, he has three episodes a day. Anna testified that he had ten episodes. In any event, Jackie stated that, before being placed on his current medication, Jake had many more. A doctor prescribed medication on April 7, 2006. Jackie stated that the medication has worked as well as anything else and that Jake has not returned to the doctor since. He also recounted a call from Anna in March 2007, where she told him that Jake was experiencing rectal bleeding. Anna wanted Jackie to take Jake to the doctor, but he did not do so because he did not discover any rectal bleeding. When asked by the court, Jackie stated that he examines Jake regularly for rectal bleeding. Jackie last took Jake to the dentist in 2007, and Jakes last teeth-cleaning was in 2004. Jackie testified that he personally monitored and inspected Jakes gums or teeth every time he (Jake) brushes. He also purchased Jake a toothbrush that played music when Jake brushes properly. He did not like taking him to the dentist because Jake must take antibiotics before going to the dentist, and Jackie did not want Jake to build an immunity. Jake has never had
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a cavity. Anna was more concerned. She stated that Williams syndrome affects the enamel on Jakes teeth and that the blood pressure medication and hypertension causes gum swelling. Jakes relationship with his family was also a major issue. Jackie acknowledged that Jake calls his current wife, Becky, Mom and that he (Jackie) does not do anything to discourage it. Jackie agreed that it was important for Jake to have a relationship with Anna, and he stated that he allows Jake to call or see Anna whenever he wishes. During the trial, Jackie was presented a medical record showing David Hoffarth, his brother, as an emergency contact. Jackie testified that he did not list Anna as an emergency contact because David always knew where he was. The parties also testified about events that occurred when Jake went to the prom. Jackies wife was a and photographer, she took Jakes prom pictures. He did not provide any of the pictures to Anna. Jake went to the prom with his stepsister, though there was conflicting testimony regarding whether he was supposed to go with Annas granddaughter. Jackie testified that the matter had been discussed but not finalized; Anna stated that Jake was supposed to actually take her granddaughter. When Jake graduated from high school, Anna and Jackie discussed invitations and thank you notes. Anna remarked that she was only given twenty-five generic invitations, despite ordering one hundred invitations. She also did not receive any senior pictures. Jackie also stated his intention to move to Vian and take Jake with him if allowed to do so by the court.
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At the conclusion of the hearing, the court stated that it would grant Annas petition to substitute her as Jakes guardian. The court relied on the supreme courts definition of unsuitable, as explained in In re Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995). From the bench, the court likened the litigation to bickering parents in a traditional custody dispute. It chided the mother for complaining about Jakes activities at the rodeo, as there was no evidence that those activities were resulting in any harm. It also admonished her for telling Jake that he would be coming to live with her prior to the filing of the petition. But the court was also displeased with Jackie for failing to make sure that Anna was involved in the planning of Jakes prom or other activities, for listing someone other than Anna as Jakes emergency contact, and for not correcting him when he called someone else Mom. The court also found that Jackie was derelict in his responsibility to ensure that Jake had medical treatment, despite the evidence that he had not been harmed as a result. These findings were incorporated in the final order entered March 28, 2008. We review traditional cases of equity, such as probate proceedings, de novo. Moore v. Sipes, 85 Ark. App. 15, 146 S.W.3d 903 (2004). However, we do not reverse a circuit courts findings of fact unless they are clearly erroneous. Id. A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed. Conner v. Donahoo, 85 Ark. App. 43, 145 S.W.3d 395 (2004). When reviewing the proceedings, we give due regard to the circuit courts opportunity and superior position to observe and determine the credibility of witnesses. Blunt v. Cartwright, 342 Ark.
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662, 30 S.W.3d 737 (2000). Before reviewing the circuit courts ultimate conclusion, we must determine whether the circuit court erred when it relied on Vesa to determine the standard for removing Jackie as Jakes guardian. A guardian of a wards person has the duty to care for and maintain the ward. Ark. Code Ann. 28-65-301 (Repl. 2004). A guardian may be removed on the same grounds and in the same manner for the removal of a personal representative of an estate. See Ark. Code Ann. 28-65-219(b) (Repl. 2004). A personal representative, and therefore a guardian, may be removed from an estate if, among other reasons, he has become mentally incompetent, disqualified, unsuitable, or incapable of discharging his or her trust, has mismanaged the estate, [or] has failed to perform any duty imposed by law or by any lawful order of the court. Ark. Code Ann. 28-48-105 (Repl. 2004). Our probate code does not define the term unsuitable, but our supreme court has relied on a definition provided by the Massachusetts Supreme Court: The statutory word unsuitable gives wide discretion to a probate judge. Past maladministration of a comparable trust, bad character, misconduct, neglect of duty, or physical or mental incapacity, warrants a finding that an executor or administrator is unsuitable. Such a finding may also be based upon the existence of an interest in conflict with his duty, or a mental attitude toward his duty or toward some person interested in the estate that creates reasonable doubt whether the executor or administrator will act honorably, intelligently, efficiently, promptly, fairly, and dispassionately in his trust. It may also be based upon any other ground for believing that his continuance in office will be likely to render the execution of the will or the administration of the estate difficult, inefficient or unduly protracted. Actual dereliction in duty need not be shown. Davis v. Adams, 231 Ark. 197, 205 n.5, 328 S.W.2d 851, 856 n.5 (1959) (quoting Quincy
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Trust Co. v. Taylor, 317 Mass. 195, 196-9757 N.E.2d 573, 574 (1944)). This definition was quoted favorably in Vesa, where this court affirmed an order removing someone as guardian of an incapacitated adults estate. Jackie contends that the circuit court erred in relying on Vesa when it removed him as guardian of Jakes person. He contends that the definition of unsuitable as stated in Vesa has only been applied to those who have been guardians of a wards estate and that the definition is inapplicable to the guardian of a wards person. We disagree. While the Vesa definition appears to have only been applied to guardianships of the estate, there is no evidence that the same definition was not meant to be applied to guardianships of ...