The opinion
John I. Purtle, Justice, dissenting. The majority opinion goes too far to uphold a chancellor (serving as probate judge here) in my opinion. I agree we should uphold them unless they are clearly erroneous. In this case the chancellor and the majority of this court are clearly erroneous, in my opinion. The majority state: “The lower court need only give ‘due regard’ to those factors listed in Ark. Stat. Ann. § 57-608 . . .” The trial court held:
That there is no statutory preference given to either of the petitioning parties to this action. That, after giving due regard to Ark. Stat. Ann. § 57-608 (Repl. 1971), the court finds that it would be in the best interest of the minor children to remain with the McGoughs . . .”
Both courts give “due regard” to the statute. The best I can figure is that “due regard” in this case means to ignore it. The statute is correctly stated in the majority opinion. The effect of the opinion is to ignore all of the statute except the first sentence. The courts are mandated by the statute to select a guardian who is suitable and willing to serve, but in addition they are required to give due regard to “the relationship by blood or marriage to the person for whom guardianship is sought.” I do not think this charge is meaningless.
In addition to the statute requiring preference to the appellants in this case I have even a much stronger reason to prefer them: the appellants are the grandparents of these minor children. I believe public policy demands that grandparents and other close relatives be given priority in this type guardianship. In Lee v. Grubbs, 269 Ark. 205 , 599 S.W.2d 715 (1980) we approved the natural father of an illegitimate child as guardian with these words: “If a guardian is to be appointed, the natural father should have some preference over others, unless he is unfit.”
The majority rely upon McCartney v. Merchants and Planters Bank, 227 Ark. 80 , 296 S.W.2d 407 (1956). There the court awarded guardianship to a bank because feuding relatives created an unfortunate situation. In citing Ark. Stat. Ann. § 57-608 the court stated: “It will be observed that the quoted statute does not make an ironclad order of priority in a situation like the one here.” This language clearly implies that relatives should be given priority. No one would argue that there are not circumstances when certain relatives would not be suitable and willing. Generally speaking, relatives of minors care for and are genuinely interested in their welfare.
The grandfather, age 52, and his wife, age 43, own a three bedroom brick home in Tucson where most of these children’s relatives also live. He earns take home pay of $1,600 per month and these children would become covered under his insurance and would qualify for other benefits. The grandparents did visit. Susie, these children’s mother, lived in Tucson with her parents prior to moving to Arkansas. When she was released from the Fayetteville hospital after the accident she was taken back home to Tucson where she died. These children were there with the grandparents at that time. The guardians in this case filed papers while the children’s mother was still in the Fayetteville hospital. Mrs. McGough told one of the blood relatives that she never wanted to hear the voice of any member of the children’s family again. Of course the McGoughs filed papers to receive the insurance money which was to be paid to the children on account of their parents’ deaths. Also, they are receiving the social security checks for the little girls. The grandparents had visited with the children in February, 1983, and again in May, 1983, at which time the girls inquired whether all the family in Tucson were “drunks” or “crooks.” The McGoughs, who have no children of their own, were married for a second time in 1981. This was for appearance sake as they were already living together. He changes jobs frequently and moves his mobile home from place to place. He has taken bankruptcy. There was testimony to the effect that the McGoughs drank a lot and smoked pot. After the $300,000 was paid into the registry of the court these guardians started talking about adopting these children. Now they will do so and the grandparents’ rights will forever be lost as to these two granddaughters.
I think the reasoning in McLain v. Short, 144 Ark. 600 , 224 S.W. 428 (1920) is still sound law. A grandfather and a stranger were seeking appointment as guardian and the stranger won. In reversing the court stated: (p. 603)
So far as the record discloses, both appellant and appellee are proper and suitable persons to be appointed guardian over said minors. Appellant is of blood kin, — their own grandfather; appellee is of no blood kin, and, save the distant relationship of affinity, is what the law terms a stranger. All other things being equal, the general rule of law is that the next of kin, rather than strangers, are preferred as guardians over children.
In my opinion the advent of the probate code had no effect upon this established rule of law. Had there been a showing that the grandparents were unfit, my opinion would have been that of the majority. If there is now no statutory preference for grandparents, does that indeed not place us in the same position the court was in when McLain was decided?
I would reverse and remand for the purpose of awarding guardianship to the grandparents in the absence of some factor tending to show the grandparents are not suitable.