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

• Decision Date: 28 April 2011
• Docket Number: No. 10–692.,10–692.
• Parties: Bethany MYERS, Appellant, v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 182

380 S.W.3d 906

Bethany MYERS, Appellant,

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee.

No. 10–692.

Supreme Court of Arkansas.

April 28, 2011.

John Wesley Hall, Little Rock, for appellant.

Elisabeth McGee, Office of Chief Counsel, Little Rock, and Chrestman Group, PLLC, by: Keith L. Chrestman, for appellees.

JIM GUNTER, Justice.

This is one of five appeals decided today that involve children who were removed from the Tony Alamo Christian Ministries (TACM) compound in Fouke, Arkansas, in September and November of 2008. In each case, the appellants are parents who have had their rights terminated as to some or all of their children.¹ In this appeal, appellant Bethany Myers, whose parental rights to two of her sons were terminated, argues (1) that the case plan requirements unduly burdened her constitutional right to free exercise of religion; (2) that the circuit court erred by allowing the introduction of certain taped conversations between Tony Alamo and members of his ministry; and (3) that the circuit court erred by finding there was sufficient evidence to support the termination of her parental rights. We assumed this case because it contains an issue involving the Arkansas Constitution; therefore, this court has jurisdiction pursuant to Arkansas Supreme Court Rule 1–2(a)(1). We affirm the circuit court.

On October 20, 2008, a joint raid was conducted by the Federal Bureau of Investigation and the Arkansas State Police on the TACM compound. As a result, six juveniles were taken into foster care. Based on information obtained from those juveniles concerning the physical abuse and neglect of children whose parents or guardians are members of TACM, an emergency custody order was entered on November 18, 2008, for numerous children living at the compound, including appellant's six children, ages four through fourteen. The next day, November 19, an amended petition for emergency custody and dependency-neglect was filed. This petition alleged that the juveniles were dependent-neglected as defined by Ark.Code Ann. § 9–27–303(18) and that removal from parental or custodial care was necessary to protect the health or physical well-being of the juveniles from immediate danger. On December 22, 2008, a probable cause order was entered, finding that the emergency conditions that necessitated the removal of the juveniles continued and that custody would remain with the Department of Human Services (DHS).

On February 27, 2009, the court entered an adjudication order finding that the juveniles, including appellant's children, were dependent-neglected. Specifically, the court found that the parents of these children failed to protect their children against physical abuse; endorsed and facilitated attempted illegal marriages of underage females to adult males; failed to reasonably assure that the children receive adequate educations; and failed to have the children properly immunized. The court found that return to the custody of the parents was contrary to the welfare of the juveniles and ordered that DHS continue to have custody of the juveniles. The court set the goal of the case as reunification and ordered the parents, including appellant, to: (1) submit to psychological evaluations; (2) attend and actively participate in counseling; (3) successfully complete parenting classes; (4) obtain safe and stable housing separate and apart from TACM; (5) obtain stable employment separate and apart from TACM. Appellant was also ordered to assist DHS in locating her three daughters, who were in hiding with her husband, Jim Myers.

A review order regarding appellant's case was entered on July 19, 2009. In that order, the court found that the case plan was not moving toward an appropriate permanency plan for the children, but the goal of the case continued to be reunification. The court found that appellant had complied with the case plan by completing parenting classes and obtaining a psychological evaluation, but she had not complied with the order to disclose the location of her husband and daughters. Appellant was again ordered to obtain housing and employment separate and apart from TACM.

On December 8, 2009, a permanency planning order was entered that changed the goal of appellant's case to termination of parental rights and adoption with respect to appellant's three sons. The court found again that appellant had partially complied with the case plan by completing parenting classes and obtaining a psychological examination, but that appellant adamantly refused to seek independent housing or employment or to disclose the whereabouts of her three daughters. The court found that appellant and her husband, Jim Myers, had exposed their children to an atmosphere with serious risk of child abuse; were totally dependent upon TACM, which was controlled by a convicted sex offender; and refused to believe that child abuse occurred within the organization at the direction of Tony Alamo.

A petition for termination of parental rights was filed with the court on December 17, 2009. In the petition, DHS sought termination of parental rights and the authority to consent to permanent alternate placement and adoption for appellant's three sons. The petition also noted that the parents continued to refuse to disclose the location of their three daughters. Appellant filed an answer to the petition for termination of parental rights on January 4, 2010, and alleged that there had been a substantial change of circumstances, namely Tony Alamo's imprisonment, that eliminated or negated the reason for the dependency adjudication; that a healthy and productive family environment for the children had been restored; and that the children were no longer in danger of abuse or neglect.

On January 14, 2010, appellant filed a motion to eliminate two requirements from the case plan, specifically the requirements that she seek housing and employment separate and apart from TACM. According to appellant, these requirements interfered with her constitutional right to practice the religion of her choice and violated the First Amendment of the United States Constitution, the substantive due-process provisions of the Fourteenth Amendment of the United States Constitution, and article 2, section 24 of the Arkansas Constitution. DHS responded and argued that the right to practice religion freely did not include the liberty to endanger or physically harm one's children.

A termination hearing on appellant's case, as well as the four other cases that are now on appeal, was held on January 27, 2010. Salisa Templeton, an employee of the Bowie County Correctional Center in Texarkana, testified that Bernie Lazaar Hoffman, also known as Tony Alamo, was recently an inmate at the facility and that recordings of his phone calls had been made. When DHS attempted to introduce a CD of the recordings, appellant objected and argued that it was inadmissible hearsay and more prejudicial than probative. DHS, on the other hand, argued that the phone calls fell under the business-records exception to hearsay. The court agreed with DHS and also found that the probative value outweighed any prejudice.

The motion to eliminate the two requirements from the case plan was then discussed, and appellant stipulated that the Arkansas Court of Appeals had already decided that there was a compelling state interest to justify an initial finding of dependency-neglect.² Appellant argued, however, that there was now a change of circumstances, specifically the imprisonment of Alamo, that rendered the two provisions regarding separate housing and employment unnecessary. Appellant also asserted that, due to these changed circumstances, there were less intrusive methods available to protect the interest and welfare of the children. Appellant argued that the current case plan infringed on her constitutional right to practice religion freely and that the threat that initially caused the children to be removed had been effectively neutralized.

DHS responded by arguing that, even assuming appellant held a legitimate religious belief and that belief was burdened by a state action, the state had a compelling interest in protecting children that justified any burden placed on appellant's religious practices. DHS disagreed that the removal of Tony Alamo from the situation changed the circumstances in any significant way. The court ruled that appellant did have a legitimate religious belief and that the state had a compelling interest, but declined to answer whether the religious freedom of appellant was unduly burdened by the state. Instead, the court stated that it would make that ruling after hearing further testimony.

Malynda Cree, the Court–Appointed Special Advocate (CASA) program director in Texarkana, testified that she was familiar with the cases involving the children taken from TACM, including the Myers children. She testified that she acted as the supervisor for the volunteers that were appointed to the case and also worked as an advocate for the children if a volunteer was no longer available. She testified that she had listened to a large number of the phone calls between Tony Alamo and the women at the compound, and based on those phone conversations, she stated that she had great concerns about whether his control over the ministry had really changed. In her opinion, Tony Alamo was still in charge of the ministry. Several excerpts of conversations between Alamo and various women at the compound were then played for the court. Cree also testified that she had no doubt that there was potential harm to the children if they were returned to their parents because the same person, Tony Alamo, continued to control of the ministry. She explained that the parents are dependent upon the ministry for their everyday basic needs, and she did not believe the parents would be able to go against whatever Alamo told them to do. She testified that none of the parents had taken steps...