The parents of an 18-month-old girl who died in state custody forfeited the right to bury the child because they were estranged from her at the time of her death and did not assume “liability” for burial costs, a Department of Human Services attorney told the Arkansas State Claims Commission on Thursday.
The parents of Emily Cheyenne Freeman are seeking monetary damages from the state, arguing that the department failed to follow its own procedures for burials and caused emotional distress by not allowing them to bury their toddler themselves.
The parents also said they were barred from attending their daughter’s state-funded funeral.
The commission did not immediately release a decision in the case.
Richard Rosen, an attorney for the department, told the commission that the law is clear about whether the parents, Thomas and Judy Freeman, had waived their right to the child’s body under the Arkansas Final Disposition Rights Act of 2009.
The law states that any person who has the right of disposition forfeits that right if he is estranged from the person at the time of death or “unwilling to assume the liability for the costs of such arrangements and disposition.”
Estranged is defined in the act as “a physical and emotional separation from the decedent at the time of death which has existed for a period of time that clearly demonstrates an absence of due affection, trust, and regard for the decedent.”
Rosen said the parents had visited the child four times in the 10 months that she was in the department’s custody and moved to Fort Smith from Mena, where the child was in foster care.
The department’s attorney questioned why the Freemans relocated to another city, roughly 85 miles away from the child.
“So your daughter’s dying in that area at somebody else’s home and you decided to move away,” Rosen said to Thomas Freeman during the hearing.
Rosen said both parents testified in depositions that they didn’t have the money to pay for a funeral.
The parents testified before the commission that while they did not have savings and their monthly income was about $700, they would have gathered the funds from family members to pay for the funeral.
They denied that they were “unwilling” to assume the funeral liability.
Thomas Freeman testified that he was never asked to incur the costs of a funeral and that the only involvement he had with the planning of it was when he was invited to a viewing the day after the child’s death.
“I just don’t understand why would you do that. Why wouldn’t you want the parents involved?” Freeman said.
Emily Freeman was removed from her family’s home in August 2009 before she was 9 months old. The department said there had been “medical neglect and environmental neglect,” and placed her in foster care.
The department noted Emily’s “failure to thrive” in seeking her removal from the home, where she lived with her parents and four older siblings.
Robert Kelly, an attorney for the family, wrote in filings with the commission that after her removal, it was discovered that Emily was “very ill, suffering from a rare congenital condition affecting her lungs that ultimately caused her death” on June 11, 2010.
The department denied requests for the parents to take custody of the body and told them they would not be allowed to attend the funeral, Kelly wrote in commission filings.
Kelly filed the claim on June 7, 2013.
Rosen wrote in the department’s response to the claim that the Division of Child and Family Services “followed its own policies with regard to the funeral and did not know or have any reason to believe that the [parents] would purportedly suffer from ‘emotional distress’ when they had little to no contact with the child for months before the child died.”
The department will assist parents with funeral arrangements but will make the arrangements “with the help of the foster parents if the division has guardianship or the parents are unable to assume this responsibility.”
The department made the funeral arrangements in Emily’s case, and some costs related to the burial were covered by Emily’s foster family, who were not identified in court filings.
Kelly told the commission that at the time of Emily’s death, her parents had not given up on being reunited with her and later obtained a court order to have her disinterred and cremated, according to their wishes.
Judy Freeman testified that the family would have made arrangements but that the department had already made them, and “we couldn’t do anything.” She said the family and several friends were planning to attend the funeral, but they were told by the department and the Polk County sheriff’s office not to attend.
Rosen asked if the family was not allowed to attend because of threats made to the department’s staff, but Judy Freeman denied that any threats were made.
Arkansas, Pages 9 on 04/11/2014