Carl J. Freeman v. Bruce Rushton et ux.

Supplemental Opinion on Denial of Rehearing March 10, 2005

PER CURIAM. Rehearing is denied.

Tom Glaze, Justice, dissenting. Carl J. Freeman files a petition for rehearing, and argues our court has made a mistake of law. At the very least, I believe this court should clarify its opinion to explain why, under Troxell v. Granville, 530 U.S. 57 (2000), and Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), Freeman, being the only living fit parent, was not given the legal presumption to which he was entitled that he was acting in his son's best interest. As we said in Linder, to overcome the presumption in the parent's favor, there must be some other factor, such as harm to the child or custodial unfitness, that justifies state interference. So long as Freeman is fit to care for his son on a day-to-day basis, the Fourteenth Amendment right attaches. The State cannot interfere with a compelling interest, and, in making such analysis, the State must accord special weight to Freeman's decision as long as he is a fit parent. Instead, this court, in its opinion, largely relied on Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000), which predates Linder and makes no refrence to Troxell.1 Although the trial court and parties agreed that Freeman is a fit parent, this court's opinion places the burden on Freeman to show he is "suitable" even though, under relevant case law, he is indisputably found to be a fit parent who is presumed to be acting in his son's best interest. Again, our opinion in this case ignores the legal principle set out in Troxell and Linder by saying any inclination to appoint a parent or relative must be subservient to the child's best interest. Of course, as previously stated above, the proper analysis must commence with the presumption that Freeman was acting in his son's best interest;however, Freeman was not given the benefit of that presumption. Our court, therefore, cannot be assured that, if it had utilized the correct legal principles and analysis, the trial court would have ruled the way it did. Utilizing the proper analysis, that presumption may well be rebutted. It appears to me that Freeman's argument that the trial court erred as a matter of law is correct under the tenets established in Troxell and Linder. In my view, confusion exists in this case and we are the only ones who can alleviate that confusion - better now than later.

1 The court's opinion only mentions the Linder case in a footnote, for the proposition that we recognize a parent's rights do not spring from a "bare biological connection" to the child, but must be born of a relationship to a child demonstrated over time. This proposition is found in Michael H. v. Gerald D., 491 U.S. 110 (1989), but that rule hardly answers the issues now before our court.