State ex rel. O'Sullivan v. Heart Ministries, Inc., 50077

• Court: Kansas Supreme Court
• Writing for the Court: MILLER; FROMME
• Citation: State ex rel. O'Sullivan v. Heart Ministries, Inc., 607 P.2d 1102, 227 Kan. 244 (Kan. 1980)
• Decision Date: 01 March 1980
• Docket Number: No. 50077,50077
• Parties: STATE of Kansas ex rel. Joseph P. O'SULLIVAN, County Attorney, Reno County, Kansas, Appellee, v. HEART MINISTRIES, INC.; Victory Village Home for Girls; William Cowell and Carol Cowell, as Directors and Operators of Victory Village Home for Girls, and as Individuals, Appellants.

Page 1102

607 P.2d 1102

227 Kan. 244

STATE of Kansas ex rel. Joseph P. O'SULLIVAN, County Attorney, Reno County, Kansas, Appellee, v. HEART MINISTRIES, INC.; Victory Village Home for Girls William Cowell and Carol Cowell, as Directors and Operators of Victory Village Home for Girls, and as Individuals, Appellants.

No. 50077.

Supreme Court of Kansas.

March 1, 1980.

Syllabus by the Court

1. The State, as parens patriae, has a legitimate, vital interest in private establishments which provide residential care for children, and that interest is sufficient to warrant licensing, together with reasonable inspection and regulation.

2. The free exercise clause of the First Amendment to the Constitution of the United States permits reasonable regulation of otherwise protected religious activity when imposed pursuant to a compelling State interest.

3. While religious beliefs cannot be regulated, some overt acts, though in the exercise of one's religious convictions, are not totally free from legislative restriction.

4. A valid and compelling State interest, such as its interest in the protection of children, is subject to a balancing process when State action impinges on individual free exercise rights.

5. A compelling interest of the State, as parens patriae, is the protection of its children from hunger, cold, cruelty, neglect, degradation, and inhumanity in all its forms.

6. The State may require, as a prerequisite to the operation of a children's home, the inspection of the premises, the payment of a nominal fee, and the securing of a license.

7. Where an administrative remedy is provided by statute, such remedy ordinarily must be exhausted before a litigant may resort to the courts.

8. In an appeal from the granting of an injunction prohibiting the defendants from operating a children's home or related facility, or from performing various services concerning children, the record is examined and it is held that the trial court did not err.

Lester C. Arvin of Arvin, Arvin & Busey, Chartered, Wichita, argued the cause, and Rodney H. Busey and Mark A. Buck, Wichita, of the same firm, were with him on the brief for appellants.

Joseph P. O'Sullivan, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Bradley J. Smoot, Deputy Atty. Gen., Lawrence, and Reid Stacey, Asst. Atty. Gen., Topeka, were with him on the brief for appellee.

MILLER, Justice:

Heart Ministries, Inc. and William and Carol Cowell appeal from the issuance of a permanent injunction against them by the trial court. The propriety of that order is attacked on numerous grounds, one of which we believe to be determinative: whether the licensing requirement of K.S.A.1979 Supp. 65-501 and the fee requirements of K.S.A.1979 Supp. 65-505 violate appellants' rights under the "free exercise" clause of the First Amendment to the Constitution of the United States.

The State, through the county attorney of Reno County, brought this action in June, 1977, praying for an injunction prohibiting the defendants, Heart Ministries and the Reverend and Mrs. Cowell, from operating, maintaining, or holding themselves out to the public as operating or maintaining a maternity hospital, a home, a boarding home, or a placement agency for juveniles under the age of 16, until defendants obtain a state license for such operations. The petition also sought an injunction prohibiting defendants from bringing children under the age of 18 into Kansas for placement in foster care in this state until defendants comply with the Interstate Compact on the Placement of Children, K.S.A.1979 Supp. 38-1202.

Victory Village Home for Girls was originally designated as a defendant. The trial court found that Victory Village Home for Girls is not a separate legal entity, but merely a name used by Heart Ministries. Victory Village Home for Girls was thereupon stricken as a party defendant from this lawsuit. No appeal is taken from that order.

We now turn to the relevant facts. Reverend Cowell, a native Kansan, graduated from Kansas State University in 1961 with a degree in agronomy. Thereafter he attended Wheaton School of Theology in Chicago, graduating with the degree of Bachelor of Divinity in 1965. Mrs. Cowell attended both Moody Bible College and Wheaton, but did not complete her work for a degree.

In 1965, the couple returned to Kansas. Reverend Cowell first had a pastorate in Hoisington, then in 1968 he accepted the call to a church in Marion. It was there that he and Mrs. Cowell became interested in helping children. In 1971, Heart Ministries was incorporated as a non-profit corporation. The nature of its business is set forth in its articles of incorporation:

" '(T)o provide housing, facilities, care and detention for wayward, homeless or delinquent individuals . . . to preach the Word of God, lead individuals to trust Christ as Savior and Lord, reach out with His love and compassion to those whose lives have been broken and marred by sin, and thus rescue the perishing. As the Lord leads, homes shall be established and scriptural methods shall be used as necessary in order to accomplish this purpose.' "

Reverend Cowell became interested in establishing a home for unwed mothers at Marion. Application was made for a state license, but the proposed facility did not conform to standards relative to financing, social services, and fire safety. Extensive and expensive modification to the structure would have been required. After much correspondence, several conferences, and inspection by various state and local officials, plans for the Marion County facility were abandoned. The Marion County land was sold, since licensing did not appear feasible.

Heart Ministries then purchased a tract of 117 acres located about 7 miles east of Hutchinson, in Reno County, in November, 1972. This tract is known as Victory Village. Reverend and Mrs. Cowell moved there, and at first occupied a trailer house; later a parsonage was built, and a large multipurpose metal building, housing a chapel, church offices, a radio studio, and a school, was completed. Construction of a two-story masonry structure, designed as a dormitory for girls and containing between eight and nine thousand square feet, was commenced in the summer of 1973. There were numerous contacts with state authorities as to construction, sanitation, area per resident, and the like, and it appears that the building is being erected in compliance with state standards and regulations. Construction was not complete at the time of trial in November, 1977.

During the period from 1972 to 1977, the defendants operated the Victory Village Home for Girls, and mention of that function or ministry was made by Reverend Cowell on his radio ministry, a program carried by six stations in a number of states. Twenty-one girls were placed in the home at various times by their parents or guardians; they came from Arizona, Arkansas, Colorado, Kansas, Missouri, Oklahoma, and Texas; the girls stayed an average of from nine months to a year. Housing was provided in private homes, some being trailers in the Village and others being homes nearby. Some of the girls stayed with Reverend and Mrs. Cowell; four girls were staying with them shortly before this action was filed. Some of the trailer homes were licensed as foster homes by the owners, but the Cowell home was never licensed. About 1972, Reverend Cowell applied for a "foster home" license so that he could care for four or fewer girls in his own home; he withdrew that application before it was acted upon. No other application for any type of girls' home was made by the defendants, nor was application made by them to operate a placement agency.

The ministry for girls as carried on by the defendants includes caring for them and providing food and shelter, schooling, counseling, and religious training. A school is operated at the Village. It uses the Accelerated Christian Education System and is not state accredited, although an expert testified that the system fulfills state requirements. Thirteen girls, in grades one through eight, were attending the school at the time of trial.

In June, 1977, four girls who were living in the Cowell's home and attending defendants' school were taken into custody by juvenile authorities on the complaint of an out-of-state acquaintance of one of the girls. Two of the girls were 14 years of age, two 16; two lived in Kansas, one in Nebraska and one in Oklahoma. All were returned to their parents. This action was filed shortly thereafter.

We turn now to the applicable statutes and regulations. The Interstate Compact on the Placement of Children was adopted by the Kansas Legislature in 1976. It appears as K.S.A.1979 Supp. 38-1202 et seq., and provides in substance that no "sending agency," which designation includes private persons, may send, bring, or cause to be sent or brought, any child into this state for placement in foster care without the consent of the appropriate public authorities in this state.

K.S.A.1979 Supp. 65-501 declares it to be unlawful "for any person, firm, corporation or association to conduct or maintain a maternity hospital or home, or a boarding, receiving or detention home for children under sixteen (16) years of age without having a license therefor from the secretary of health and environment."

K.S.A. 65-502 defines maternity hospital or home.

K.S.A.1979 Supp. 65-503 defines a boarding home for children in part as a house or other place conducted or maintained by anyone who (1) "advertises or holds himself or herself out as conducting a boarding house or home for children under sixteen (16) years of age"; or (2) "has in his or her control or custody one or more children under sixteen (16) years of age unattended by parent or guardian for the purpose of providing such children with food or lodging, or both, except children related to him or her by blood or marriage, or legal adoption."

K.S.A.1979 Supp. 65-504 provides for...