Cite as 2011 Ark. App. 775 ARKANSAS COURT OF APPEALS DIVISION II No. CA11-506 ROBIN MUNN opinionDelivered December 1,4,2011. APPELLANT APPEAL FROM THE LA'WRENCE COUNTY CIRCUIT COURT lNo.PR-201o-el HONORABLE PHILIP SMITH, JONATHAN HUDSON JUDGE APPELLEE AFFIRMED JOSEPHINE LINKER HART, Judge Robin Munn, the maternal grandmother and ersrwhile temporary guardian of eight-year-old A.H., appeals from an order ofthe Lawrence County Probate Court dissolving the lemporary guardianship and awarding custody of the minor to her natural father,Jonathan Hudson. On appeal, she argues that the trial court erred in awarding custody of the child to the child's natural father. We aftirm. While they were both in high school, Hudson married Christie Munn after she became pregnant with A.H. Hudson was seventeen years old when A.H. was born. They lived togerher as husband and wife unril 2008, when they divorced. In February 2009, Hudson enlisted in the United States Army. In Octobe r 2009, Christie moved into Munn's home with A.H. Christie died in an automobile accident in the early morning hours of February 7,2070. On February 12,2010, Munn filed a petition for an emergency ex parte temporary
Cite as 2011 Ark. App. 775 guardianship over A.H. She alleged that Hudson was "not in a posirion to provide the stabiliry and continuity of care that the minor child requires during this tragic time." Munn told Hudson ac the time that she needed to be named guardian so that she could consent to medical care for A.H. and asked only that he allow the guardianship through the rest of the school year and summer vacation. Hudson consented to the temporary guardianship. The order establishing the temporary guardianship was entered on M arch 1.2,2010. By its express terms, the order set a hearing date ofAugust 9,201,0, to review the temporary guardianship. On May 13, 2010, Hudson petitioned to terminate the temporary guardianship. In his petition, he recited that the purpose of the temporary guardianship was to "make for a smoother transition for the minor child after experiencing the tragic loss of her mother, and it would allow the minor child to 6nish the school year." He also stated that he was engaged to be married on June 26, 2010. Munn opposed the termination of the guardianship and petitioned to make the guardianship perrnanent. Two hearings were held on the guardianship-termination petition. In the initial hearing, Hudson, who was then rwenry-five years old, admitted using illegal drugs when he was Ewenry-one. He, however, denied a current substance-abuse problem. At that same hearing, psychiatrist Dr. Muhammad Asad Khan, who admitted that he had only spoken to Munn and had yet to meet Hudson, testified that A.H. had gone through an extremely traumatic event with the loss of her mother. He opined that the loss of her grandmother and primary support penon would be traumatic to A.H. Dr. Khan, however, acknowledged the importance of the father-child bond, but stated that the most important consideration for -2-CACRl 1.506
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Cite as 2011 Ark. App. 775 was in A.H.'s best interest to live with her father. On appeal, Munn argues that the trial court erred in awarding custody of A.H. to Hudson. Ciring Smith u. Thomas,373 Ark. 427,2845.W.3d476 (2008), she asserts that "the overriding consideration in guardianship cases is the best interest ofthe minor child; ail other considerations are secondary." Further, she urges this court to 6nd analogous our recent decision in Hichs u. Faith,201,7 Ark. App. 330, S.W.3d where we affirmed a trial - -, court's choice of matemal grandparents as guardian of a minor child over the child's natural father. She points to what she reGrs to as "serious judgment lapses," specifically where Hudson allowed his daughter to play in the wooded area behind his home in Fort Meade base housing; letting A.H. take her younger stepsisters, without adult supervision, to a play area near his home; gave A.H. melatonin; and planned to let A.H. travel as an unaccompanied minor on a commercial airliner, as well as his sporadic visitation with A.H. and his prior drug use, as proofof Hudson's unsuitabiliry. In sum, Munn argues that the trial court erred in rwo critical respects, finding that Hudson was qualified and suitable, and in misapplying the law by failing'to recognize that the proper inquiry was not whether Hudson was qualified and suitable, but rather between Hudson and Munn, who was the "most" suitable. 'We do not 6nd this argument penuasive. 'We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Deuine u. Martens,371 Ark.60, 263 S.W.3d 515 (2007). A Ending is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and 6rm conviction that a mistake has been made. Id. -4-CACRl I-506
Cite as 2011 Ark. App. 775 'When reviewing the proceedings, we give due regard to the opportuniry and superior position of the probate judge to determine the credibiliry of the witnesses. Id. Once a guardianship has been created, Arkansas Code Annotated section 28-65-401 (Repl. 2004) establishes the process for terminating that guardianship. In pertinent part, that section provides; (b) A guardianship may be terminated by court order after such notice as the court may require: (3) I[ for any other reason, the guardianship is no longer necessary or for the best interest of the ward-We hold that the trial court did not clearly err in terminating the guardianship. We note 6nt that the temporary guardianship was established because, immediately following the death ofA.H.'s custodial parent, Hudson was "not in a position to provide the stabiliry and continuiry of care that the minor child require[d] during this tragic time." By consenting to the temporary guardianship, Hudson acknowledged that it was needed to minimize the disruption in A.H.'s liG. By the time the trial court dissolved the guardianship, Hudson had remarried and was better able to take on parenting responsibilities. A.H.'s school year had ended (although a new year had begun), and nearly a year had passed since the tragic death of her mother. A.H. had established new relationships with the members of her father's new family and experienced in a positive way her new living environment. Likewise, we find no merit in Munn's contention that the instant case was controlled by our decision in Hicks. We held in Hir&s that the trial court's determination that the natural CACRI I-506
Cite as 2011 Ark. App. 775 father, who had a long history of drug abuse and sporadic gainful employment, was not a suitable custodian ofhis minor child was not clearly erroneous where the trial court found that his recent sobriery and employment was not "of sufEcient depth, duration, and sinceriry to warrant custody of the child." Unlike the case at bar, it was the appellant's unstable liGsryle that created the necessity ofthe guardianship in lieu of his assumrng custody of the child as the natural parent. Significantly, the trial court in Hlrks was unconvinced that the appellant's past problems with substance abuse and sporadic employment had been recti6ed. Conversely, there was testimony from Hudson, which the trial court obviously found credible, that his youthful indiscretions were behind him. As noted previously, we deGr to the supenor position of the trial court to assess the credibiliry of witnesses. Devine, supru. In sum, unlike Hicks, the trial court in the instant case did not find Hudson un6t. Accordingly, the instant case is clearly more analogous to Dedne, where the supreme court reversed the creation of a permanent guardianship after a natural parent had "rectified" the issues that made the creation of a temporary guardianship necessary. 'We are mindful of Munn's argument that Hudson's decisions to allow A.H. to "without adult supervision" take her step sisters, ages four and five, to play at a playground near his home on the Army base where he was stationed; to attempt to fly back to Arkansas as an unaccompanied minor on a commercial airline; and to take a natural food supplement, weigh against the trial court's transGr of custody to the child's natural father. However, the trial court did not 6nd that these decisions, and the qualiry ofHudson's decision making that they evidenced, made continuing the guardianship necessary. -6-CACR1 1.506
Cite as 2011 Ark. App. 775 Likewise, we have considered, as did the trial court, Dr. Khan's opinion regarding the potentral trauma to A.H. from the loss ofher daiiy contact with her grandmother as she joined her father. We believe that the trial court made adequate provisions to mitigate the emotional damage by 6nt allowing an extended visit with Hudson before dissolving the guardianship, ordering frequent visitation with Munn after transGrring custody, and requiring Hudson to enroll A.H. in counseling. IJnder these Acts, we cannot say that the trial court clearly erred in finding that the guardianship was no longer necessary. Having affirmed on that particular statutory ground, we need not accept Munn's invitation to engage in extended best-interest-of-the-ward anaiysis. As the supreme court noted in Graham u. Matheny,2009 Ark. 481,346 S.W.3d 273, the statutory standard set forth in Arkansas Code Annotated section 28-65-401(b)(3) is codi6ed in the disjunctive, and either ground is sufficient. In conclusion, we note further that this is not a situation where the trial court would be required by statute to decide which parry would make the better custodian. We acknowledge that it is conceivable in a proceeding to terminate a guardianship that the relative merits of two candidates for custody of a minor child might be fruitful inquiry. However, this analysis is not required in this case, as we have afirmed the trial court's finding that the guardianship was no longer necessary. Affirmed. GLovER and ManuN,lJ., agree. -7-CACRI 1-506
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