Ark. Dep't of Human Servs. v. Cole

• Decision Date: 07 April 2011
• Docket Number: No. 10–840.,10–840.
• Citation: 2011 Ark. 145,380 S.W.3d 429
• Parties: The ARKANSAS DEPARTMENT OF HUMAN SERVICES and John M. Selig, Director, in his official capacity, and his successors in Office, and the Child Welfare Agency Review Board and James W. Balcom, Chairman, in his official Capacity, and his Successors in Office, Appellants/Cross–Appellees, and Family Council Action Committee and its President Jerry Cox, Intervenor Appellants/Cross–Appellees, v. Sheila COLE, on her own behalf, and by, for and on behalf of her Granddaughter W.H.; Stephanie Huffman and Wendy Rickman; Frank Pennisi and Matt Harrison; Meredith Scroggin and Benny Scroggin, on their own behalves, and by, for and on behalf of their two Children, N.S. and L.S.; Susan Duell–Mitchell and Chris Mitchell, on their own behalves, and by, for and on behalf of their two children, N.J.M. and N.C.M.; Curtis Chatham and Shane Frazier; and S.H., R.P., and E.P., by and through their next friend, Oscar Jones, Appellees/Cross–Appellants.
• Court: Arkansas Supreme Court

2011 Ark. 145

380 S.W.3d 429

The ARKANSAS DEPARTMENT OF HUMAN SERVICES and John M. Selig, Director, in his official capacity, and his successors in Office, and the Child Welfare Agency Review Board and James W. Balcom, Chairman, in his official Capacity, and his Successors in Office, Appellants/Cross–Appellees,

and

Family Council Action Committee and its President Jerry Cox, Intervenor Appellants/Cross–Appellees,

v.Sheila COLE, on her own behalf, and by, for and on behalf of her Granddaughter W.H.; Stephanie Huffman and Wendy Rickman; Frank Pennisi and Matt Harrison; Meredith Scroggin and Benny Scroggin, on their own behalves, and by, for and on behalf of their two Children, N.S. and L.S.; Susan Duell–Mitchell and Chris Mitchell, on their own behalves, and by, for and on behalf of their two children, N.J.M. and N.C.M.; Curtis Chatham and Shane Frazier; and S.H., R.P., and E.P., by and through their next friend, Oscar Jones, Appellees/Cross–Appellants.

No. 10–840.

Supreme Court of Arkansas.

April 7, 2011.

Held Unconstitutional

West's A.C.A. §§ 9–8–301, 9–8–302, 9–8–303, 9–8–304, 9–8–305.

Dustin McDaniel, Att'y Gen., by: C. Joseph Cordi and Colin R. Jorgensen, Ass't Att'ys Gen., for appellants.

Martha M. Adcock; Alliance Defense Fund, by: Daniel H. Blomberg, Byron J. Babione, Brian W. Raum, and Sara F. Tappen, for intervenor-appellants.

Williams & Anderson PLC, Little Rock, by: Marie-Bernarde Miller and Daniel J. Beck; Sullivan & Cromwell LLP, by: Garrard R. Beeney, Stacey R. Friedman, Stephen Ehrenberg, Emma Gilmore, Christopher Diffee, Taly Dvorkis, Angelica Sinopole, and Jared A. Bennett Feiger; and Christine P. Sun, Leslie Cooper, Rose Saxe, and James Esseks, The American Civil Liberties Union Foundation, Inc., for appellees.

Kelly Browe Olson, for amicus curiae Arkansas Law School Deans and Professors.

Daniel Greenberg, for amicus curiae Dr. Roger Hiatt.

Mitchell, Blackstock, Barnes, Ivers & Sneddon, PLLC, by: Mark Burnette; and Susan L. Sommer, Flor Bermudez, and Kenneth D. Upton, Jr., Lambda Legal Defense and Education Fund, Inc., for amici curiae Lambda Legal Defense and Education Fund, Inc., and other civil rights organizations in support of appellees.

Wilmer Cutler Pickering Hale and Dorr LLP, by: Kimberly A. Parker and Heath A. Brooks; Emily M. Meyers; Wright, Lindsey & Jennings LLP, by: Stephen R. Lancaster; and McMath Woods P.A., by: J. Bruce McMath, for amici curiae American Academy of Adoption Attorneys, Arkansas Advocates for Children and Families, Arkansas Chapter of American Academy of Pediatrics, Arkansas Psychological Association, Arkansas Chapter of the National Association of Social Workers, Center for Adoption Policy, Child Welfare League of America, Evan B. Donaldson Adoption Institute, Foster Care Alumni of America, Barbara Miles (Former Arkansas Foster Youth), National Center for Adoption Law & Policy, National Center for Youth Law, North American Council on Adoptable Children, Marcia A. Shobe, Ph.D., and Howard M. Turney, Ph.D.

ROBERT L. BROWN, Justice.

Appellants, the Arkansas Department of Human Services and its Director and his successors, and the Arkansas Child Welfare Agency Review Board and its Chairman and his successors, appeal an Order and Judgment ruling Initiated Act 1 unconstitutional as a violation of fundamental privacy rights implicit in the Arkansas Constitution. Appellee Sheila Cole and the other appellees also cross-appeal against the state appellants and the intervenor appellants on certain other constitutional issues raised in their complaint that were dismissed by the circuit court. We affirm the circuit court's ruling that Act 1 is unconstitutional as a violation of fundamental privacy rights under the Arkansas Constitution. We decline to reach the issues raised on cross-appeal, as they are moot.

On November 4, 2008, a ballot initiative entitled “An Act Providing That an Individual Who is Cohabiting Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less Than Eighteen Years Old” was approved by fifty-seven percent of Arkansas voters. The ballot initiative is known as the Arkansas Adoption and Foster Care Act of 2008 or “Act 1.” Act 1 went into effect on January 1, 2009, and is now codified at Arkansas Code Annotated sections 9–8–301 to –305.

Under Act 1, an individual is prohibited from adopting or serving as a foster parent if that individual is “cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.” Ark.Code Ann. § 9–8–304(a) (Repl.2009). This prohibition on adoption and foster parenting “applies equally to cohabiting opposite-sex and same-sex individuals.” Ark.Code Ann. § 9–8–304(b). Act 1 further provides that the “public policy of the state is to favor marriage as defined by the constitution and laws of this state over unmarried cohabitation with regard to adoption and foster care.” Ark.Code Ann. § 9–8–302 (Repl.2009). Act 1 also declares that “it is in the best interest of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabiting outside of marriage.” Ark.Code Ann. § 9–8–301 (Repl.2009).

On December 30, 2008, appellees Sheila Cole and a group which includes unmarried adults who wish to foster or adopt children in Arkansas, adult parents who wish to direct the adoption of their biological children in the event of their incapacitation or death, and the biological children of those parents (collectively “Cole”),¹ filed a complaint against the State of Arkansas, the Arkansas Attorney General, the Arkansas Department of Human Services (DHS) and its Director, and the Arkansas Child Welfare Agency Review Board (CWARB) and its Chairman (collectively “the State”). In her complaint, Cole pled the following counts: (1) Act 1 deprives children of the right of access to available, suitable, and appropriate homes in violation of the Due Process Clause of the United States Constitution and the Civil Rights Act, 42 U.S.C. § 1983; (2) Act 1 fails to serve the best interests of the children in state custody and thus violates their rights to due process under articles 8 and 21 of the Arkansas Constitution and Arkansas Code Annotated section 16–123–101; (3) Act 1 burdens family integrity in violation of the Due Process Clause of the United States Constitution and the Civil Rights Act, 42 U.S.C. § 1983; (4) Act 1 burdens family integrity and thus violates their rights to due process under articles 8 and 21 of the Arkansas Constitution and Arkansas Code Annotated section 16–123–101; (5) Act 1 deprives parents of their fundamental right to parental autonomy by improperly limiting their ability to make decisions concerning the care, custody, and control of their children in violation of the Due Process Clause of the United States Constitution and the Civil Rights Act, 42 U.S.C. § 1983; (6) Act 1 deprives parents of their fundamental right to parental autonomy by improperly limiting their ability to make decisions concerning the care, custody, and control of their children and thus violates their rights to due process under articles 8 and 21 of the Arkansas Constitution and Arkansas Code Annotated section 16–123–101; (7) Act 1 deprives children of the right to be adopted by those individuals chosen by their parents in violation of the Equal Protection Clause of the United States Constitution and the Civil Rights Act, 42 U.S.C. § 1983; (8) Act 1 deprives children of the right to be adopted by those individuals chosen by their parents and thus violates their rights to equal protection under articles 8 and 21 of the Arkansas Constitution and Arkansas Code Annotated section 16–123–101; (9) Act 1 burdens intimate relationships in violation of the Due Process Clause, the Equal Protection Clause, and the right to privacy under the United States Constitution and the Civil Rights Act, 42 U.S.C. § 1983; (10) Act 1 burdens intimate relationships and thus violates their due process, equal protection, and privacy rights under articles 8 and 21 of the Arkansas Constitution and Arkansas Code Annotated section 16–123–101; (1 1) the ballot title of the initiative was materially misleading in violation of amendment 7 of the Arkansas Constitution; (12) Act 1 is unconstitutionally vague in violation of the Due Process Clause of the United States Constitution and the Civil Rights Act, 42 U.S.C. § 1983; and (13) Act 1 is unconstitutionally vague in violation of the Due Process Clause of the Arkansas Constitution and Arkansas Code Annotated section 16–123–101. ²

On January 16, 2009, the State moved to dismiss Cole's complaint for failure to state a claim upon which relief can be granted under Arkansas Rule of Civil Procedure 12(b)(6). On the same day, the Family Council Action Committee, a sponsor of Act 1, and its President Jerry Cox (collectively “FCAC”), moved to intervene as an additional party in support of Act 1. Following a hearing on March 6, 2009, the circuit court granted the motion to intervene, and FCAC filed a separate motion to dismiss adopting the State's motion to dismiss.

The circuit court held a hearing on the State's and FCAC's motions to dismiss. On April 16, 2009, the circuit court entered an order dismissing Count 11 of the complaint and deferring judgment on the motions to dismiss concerning Counts 1–10 upon a full hearing of the evidence.³

After conducting discovery, Cole, the State, and FCAC moved for summary judgment. The circuit court conducted a hearing, and in an order dated April 16, 2010, the circuit court granted Cole's motion for summary judgment on Count 10 and declared Act 1 unconstitutional under the Arkansas Constitution; granted the State's and FCAC's motions to dismiss and motions for summary judgment on all of the claims asserted under the United States Constitution (Counts 1, 3, 5, 7, 9, and 12); and dismissed the remaining claims under the Arkansas Constitution (Counts 2, 4, 6, 8, and 13),...