The opinion
WENDELL Griffen, Judge, dissenting.
“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”
— Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
“The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.”
— Parham v. J.R., 442 U.S. 584, 602 (1979).
“[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”
— Troxel v. Granville, 530 U.S. 57, 68-69 (2000).
Sadly, it appears that the majority has decided to eviscerate one of the most fundamental rights: that of a fit parent to exercise custody, care, and nurture over her child without meddlesome interference by the government. It is not a challenge to find a case supporting the proposition that “a parent’s interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment.” Troxel v. Granville, 530 U.S. 57, 77 (Souter, J., concurring) (citing Washington v. Glucksberg, 521 U.S. 702 (1997); Santosky v. Kramer, 455 U.S. 745 (1982); Parham v. J.R., 442 U.S. 584 (1979); Quilloin v. Walcott, 434 U.S. 246 (1978); Wisconsin v. Yoder, 406 U.S. 205 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923)). Yet, despite the clear, longstanding, and respected legal preference for upholding the rights of a parent to have custody of her child against the competing claim of a third party unless the parent is judicially determined to be unfit, the majority today has denied the claim of a mother to exercise custody over her daughter without even an allegation of unfitness, let alone proof of unfitness. Like Judge Vaught in his concurring opinion, I decry this decision and the reasoning behind it. However, I cannot join the majority in imposing this result for reasons set forth below.
As admitted by the majority opinion, the prime and controlling factor in child-custody cases is the best interest of the child. Schuh v. Roberson, 302 Ark. 305 , 788 S.W.2d 740 (1990); Dunham v. Doyle, 84 Ark. App. 36 , 129 S.W.3d 304 (2004). However, it is established law in Arkansas that “the law prefers a parent over a grandparent or other third person, unless the parent is proved to be incompetent or unfit.” Dunham, 84 Ark. App. at 40 , 129 S.W.3d at 306-07 . While this preference is not absolute, Freshour v. West, 334 Ark. 100 , 971 S.W.2d 263 (1998), it shall not be taken lightly. Our law has always stated that a third party seeking to deprive a parent of custody must first show that the parent is not a suitable person to have the child. Schuh v. Roberson, supra; Riley v. Vest, 235 Ark. 192 , 357 S.W.2d 497 (1962). The law establishing the natural-parent preference “must prevail unless it is established that the natural parent is unfit.” Schuh, 302 Ark. at 306-07 , 788 S.W.2d at 741 (citing Stamps v. Rawlins, 297 Ark. 370 , 761 S.W.2d 933 (1988); Perkins v. Perkins, 266 Ark. 957 , 589 S.W.2d 588 (Ark. App. 1979)).
The common law established this preference because the law presumes that a fit parent will act in a child’s best interests. Linder v. Linder, 348 Ark. 322 , 72 S.W.3d 841 (2002); see also Parham, 442 U.S. at 601 (“[Historically [the law] has recognized that natural bonds of affection lead parents to act in the best interests of their children.”). Until clear evidence has been presented that demonstrates parental conduct concerning the child that rebuts the presumption of parental benevolency, government has no legitimate reason to deny the right of a parent to exercise custody over her child. For government to act in this fashion without such clear proof of unfitness is, in my view, a clear denial of a parent’s right to due process of law as guaranteed by the Fourteenth Amendment to the federal Constitution.
The majority states, “The rights of parents are not proprietary and are subject to their related duty to care for and protect the child; the law secures their preferential rights only as long as they discharge their obligations.” However, the burden of proving failure to discharge the parental obligation has never been met by mere proof that an otherwise benevolent parent entrusted her children in the care of another party for a period of time:
Courts are very reluctant to take from the natural parents the custody of their child, and will not do so unless the parents have manifested such indifference to its welfare as indicates a lack of intention to discharge the duties imposed by the laws of nature and of the state to their offspring suitable to their station in life. When, however, the natural parents so far fail to discharge these obligations as to manifest an abandonment of the child and the renunciation of their duties to it, it then becomes the policy of the law to induce some good man or woman to take the waif into the bosom of their home, and when they have done so and, through their attentions to it, have learned to love it as ifit were their very own child, this bond of affection will not then be severed, although the natural parent may later repent his breach of the laws of nature and of the state and offer to resume the duties and obligations which he should never have ceased to perform.
Holmes v. Coleman, 195 Ark. 196, 198-99 , 111 S.W.2d 474, 476 (1937) (emphasis added), quoted in Lloyd v. Butts, 343 Ark. 620, 624 , 37 S.W.3d 603, 606 (2001); Dunham, 84 Ark. App. at 47 , 129 S.W.3d at 311 . 1
The instant case is totally different from cases such as Larkin v. Pridgett, 241 Ark. 193 , 407 S.W.2d 374 (1966), or Jones v. Strauser, 266 Ark. 441 , 585 S.W.2d 931 (1979), where the natural parent was completely out of the child’s life for a significant portion of time, thus indicating abandonment of the parental role. Kari Chambers was, to be sure, in the physical custody of her grandparents; however, the evidence shows that Kelly Coffee still played a role in her life, regularly visiting her and supporting her. Furthermore, there was unmistakable evidence that the strained relationship between Kelly Coffee and Linda Zolliecoffer made it difficult for Kelly and Kari to have a normal parent-child relationship. Remarkably, the mother in this case is not only being denied the benefit of the natural-parent preference; today’s holding works to reward a third party whose conflict with the parent has operated to the detriment of the parent-child relationship that the natural-parent preference — along with the rest of the law — exists to protect and foster. Thus, in this decision our court actually penalizes a parent by stripping her of the custody right and puts that parent in the very dilemma that Judge Vaught has mentioned in his concurring opinion.
I am especially concerned about the effect that this holding will have on children whose fit parents make the difficult decision to entrust them with other family members during challenging times. It is not at all unusual for children to be delivered by loving and supporting parents into the care of other family members. Sometimes this occurs to shield the children from the strain of marital discord involving the parents. Children have also been entrusted into the custody of relatives for long periods of time so that they could attend schools or be removed from influences or conditions that their parents considered undesirable, if not threatening. I am very concerned that the holding reached by the majority today operates to treat the parents who make such choices as if they were uncaring, unloving, and unfit to raise their children merely because they may be less affluent, educated, or socially attractive than some third party. My concern grows to the point of alarm as I consider that the parent in this case has never been ever alleged to be unfit, let alone proven unfit. Rather, the law has stripped her of the most fundamental right of parenthood — the right to exercise custody over her own child, without even requiring proof that she did anything — or failed to do something — so as to justify such a disruptive decision.
Today’s opinion is an outright, and unwise, rejection of the longstanding principle that a natural parent has a fundamental right to raise his or her children unless shown to be unfit. Absent a showing of unfitness, I continue to believe that it is in a child’s best interest to be in the custody of a natural parent and that a fit parent has the right to decide where, and with whom, her child should live. Because the majority’s decision goes against this basic principle, I must respectfully dissent.
I am authorized to state that Judges Gladwin and Neal join in this opinion.
DECEMBER 14, 2005 SUPPLEMENTAL OPINION ON DENIAL of REHEARING
Witt Law Firm, P.C., by: Neva B. Witt, for appellants.
James C. Mainard, for appellees.
John B. Robbins, Judge. Appellants David G. Coffee and J Kelly Lynn Coffee have filed a petition seeking a rehearing of their appeal following our affirmance of November 9, 2005. Although we deny their petition, we supplement our majority opinion to briefly address appellants’ contention that we have ignored their constitutional rights under the Due Process Clause of the Fourteenth Amendment. See Troxel v. Granville, 530 U.S. 57 (2000).
While we will not express an opinion as to the disposition of their appeal had this issue been properly presented to us, we remind appellants and the bar that, on appellate review, issues of even constitutional dimension are waived if not presented to the trial court and a ruling obtained. See London v. State, 354 Ark. 313 , 125 S.W.3d 813 (2003); Taylor v. Taylor, 345 Ark. 300 , 47 S.W.3d 222 (2001); Warnock v. Warnock, 336 Ark. 506 , 988 S.W.2d 7 (1999); Dansby v. Dansby, 87 Ark. App. 156 , 189 S.W.3d 473 (2004); Tipton v. Aaron, 87 Ark. App. 1 , 185 S.W.3d 142 (2004). In the instant case, this constitutional argument was not raised before the trial court, nor was it even raised by appellants in their briefs before us. It is now raised for the first time in a petition for rehearing. It comes too late, and we would violate a fundamental appellate rule to decide such issue.
Rehearing denied.
Pittman, C.J., Hart, Gladwin, Glover, and Vaught, JJ., agree. Neal, Crabtree, and Baker, JJ., would grant. By analogy, to establish abandonment in an adoption case, one must present evidence showing that “the parent deserted, forsook entirely, or relinquished all connection with, or concern in, the child.” Zgleszewski v. Zgleszewski, 260 Ark. 629, 632 , 542 S.W.2d 765, 767 (1976) (internal quotes omitted).