State ex rel. Juvenile Dept. of Polk County v. Tucker

• Decision Date: 28 January 1987
• Docket Number: J-3808
• Citation: 83 Or.App. 330,731 P.2d 1051
• Parties: In the Matter of Mark Tucker, a Minor Child. STATE of Oregon, ex rel., JUVENILE DEPARTMENT OF POLK COUNTY, Respondent, v. Dale and Stephanie TUCKER, Appellants. ; CA A37012.
• Court: Oregon Court of Appeals

Page 1051

731 P.2d 1051

83 Or.App. 330

In the Matter of Mark Tucker, a Minor Child.

STATE of Oregon, ex rel., JUVENILE DEPARTMENT OF POLK

COUNTY, Respondent, v. Dale and Stephanie TUCKER, Appellants.

J-3808; CA A37012.

Court of Appeals of Oregon.

Argued and Submitted July 16, 1986.

Decided Jan. 28, 1987.

Paul G. Crowley, Salem, argued the cause for appellants. With him on brief was James J. Susee, Salem.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Nancy L. Simmons, Certified Law Student, Salem.

Before RICHARDSON, P.J., and JOSEPH, C.J., and DEITS, J.

JOSEPH, Chief Judge.

Parents appeal in this juvenile case from a dispositional order containing conditions that they must obey in order to regain custody of their child. They are members of the Good Shepherd Tabernacle, a Christian church founded by Ariel Sherman. In April and May, 1984, approximately 50 church members, including parents, moved to Oregon and took possession of a group of residences in Polk County. In November, 1984, as a result of child abuse reports, Children's Services Division (CSD) was granted temporary custody of several children, including Mark Tucker. The children were placed temporarily in foster homes, and CSD petitioned for wardship. After a hearing, CSD was awarded custody of Mark for placement in foster care. The court ordered that his physical custody be returned to parents as soon as practicable, subject to certain conditions.

We address only the assignment of error ¹ which contends that condition 12 in the dispositional order violates parents' constitutional right to the free exercise of religion under the Oregon and United States Constitutions. The condition provides:

"The parents and the said child shall have no contact with Mr. Ariel Sherman whatsoever. The word 'contact' is defined to mean any contact or communication, either direct or indirect, in person, by telephone, by writing or otherwise, by himself or herself or others acting on his or her behalf."

Testimony at the hearing established that Mark's parents and Sherman had disciplined him by various cruel methods. ORS 419.476(1)(e). There were three types of punishment: being required to sit for long periods in an empty outdoor swimming pool; being handcuffed to pipes in the pool's pumphouse; and being placed in a storage room, known as the "dark room." Mark said he had been placed in the pool with other children from 8 a.m. to 9 p.m. for two consecutive summer days. The children were not allowed out of the pool to use the toilet. They had to urinate and defecate in their clothes and, when they were taken out of the pool, their clothes were removed and they were hosed down. Mark also testified that Sherman determined what type of punishment the children would receive and that, after the pool ceased to be effective as a punishment place, Sherman began placing the children in the storage room. Mark was tied up in the room by Sherman and left to hang from the ceiling for most of one day.

O'Connell, a member of the commune whose children had also been taken away by CSD, confirmed Mark's testimony about the various forms of punishment. He also stated:

"Most of us in the group looked to Mr. Sherman for guidance and for counselling. And I guess I have to say for the most part preferred to relinquish our own responsibility where our children were concerned and preferred to allow him to see what he could do with them when we felt inadequate or ineffectual or unable to do something with them."

The court found Mark's and O'Connell's testimony wholly credible. Anderson, also a member of the commune from November, 1979, to May, 1984, testified that Sherman had "total control over every single aspect" of the commune, including punishment of children. He described frequent evening meetings at which discipline problems with the children were discussed and at which Sherman would prescribe a "correction." Once Sherman had prescribed a procedure to correct a problem, all members were expected to follow it. Testimony also established that Sherman played the controlling role in the religious beliefs of the members of the Good Shepherd Tabernacle. He is considered by the members to be a pastor, an overseer and a counselor.

We first address the state constitutional claim. See Smith v. Employment Div., 301 Or. 209, 213, 721 P.2d 445 (1986). Article I, sections 2 and 3, of the Oregon Constitution provide:

"(2) All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.--

"(3) No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience.--"

For a court to impose a total ban on any form of contact between a person and the person's pastor impinges on that person's right to the free exercise and enjoyment of religious opinions. Although a judge may impose conditions necessary for a child's welfare before permitting reestablishment of parental custody, when the conditions also affect the parents' constitutional rights, they must be strictly tailored to do no more than what is necessary for the child's welfare. Parents may not be required to choose between their religious beliefs and practices and their children when there is no compelling reason for forcing them to the choice. Carroll v. Princess Anne, 393 U.S. 175, 183, ...