*1 Argued July 12; and submitted reversed and remanded as to condition 28, 1987 January otherwise affirmed In the Matter of Tucker, Mark a Minor Child.

STATE ex rel JUVENILE DEPARTMENT COUNTY,

OF POLK Respondent, al, et TUCKER Appellants. (J-3808; A37012) CA 731 P2d 1051 Salem, appellants. Crowley, argued cause Paul G. Susee, J. was James Salem. With him the brief General, Salem, Atkinson, Attorney M. Assistant Robert the brief were respondent. With him on the cause for argued Jr., General, Mountain, Attorney James E. Frohnmayer, Dave *2 Simmons, Law General, L. Certified Nancy Solicitor Student, Salem. Richardson, Joseph, Presiding Judge,

Before Chief Deits, Judge. Judge,

JOSEPH, C. J.

Deits, J., specially concurring.

JOSEPH, C. J. appeal

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

We address of error1 which contends that dispositional condition 12 in the order violates parents’ constitutional to the free exercise of religion under and United States Constitutions. The provides: condition *3 parents

“The the said child shall have no contact with Mr. Ariel Sherman whatsoever. The word ‘contact’ is defined any communication, to mean indirect, contact or either direct or person, by telephone, by otherwise, writing by or acting himself or herself or others his her or behalf.” Testimony at the hearing established that Mark’s disciplined by and Sherman had him various cruel 419.476(l)(e). methods. ORS There types were three of punishment: being required to sit long periods empty for in an outdoor swimming pool; being handcuffed pipes to the pool’s pumphouse; placed room, in a being storage known as the “dark placed room.” Mark said he had been in the pool with other p.m. children from 8 a.m. to 9 for two consecutive days. summer The children pool were not allowed out of the to use the toilet. had to urinate and defecate in their and, clothes they pool, when were taken out of the their they clothes were removed and were hosed down. Mark also testified that Sherman determined what of type punishment assignments require Parents’ other of error no discussion. to that, ceased be pool after the receive and the children would placing began Sherman punishment place, effective as a by room up was tied in the storage room. Mark children in ceiling day. most of one hang left to from the for Sherman and O’Connell, whose children a member of the commune CSD, Mark’s testi- away by also taken confirmed had been also He stated: mony punishment. the various forms of about guidance group Mr. Sherman for “Most us looked to say part I to the most counselling. guess and for And I have relinquish responsibility our preferred where to our own to him to see preferred allow children were concerned and what inadequate we or do with when felt he could them something unable to with them.” ineffectual or do testimony The court found Mark’s O’Connell’s wholly Anderson, also a member of the commune credible. November, 1979, 1984, to that Sherman May, from testified commune, aspect” had every single “total control over frequent He including punishment of children. described problems the chil- evening meetings discipline at which with prescribe dren were discussed and at Sherman would a which prescribed procedure “correction.” Once Sherman had to expected correct all to follow it. problem, members were the control- Testimony played also established that Sherman ling role in of the Good beliefs members He Shepherd Tabernacle. is considered the members be pastor, an overseer a counselor. See claim. We first address the state constitutional Div., 209, Employment Smith v. Or P2d 445 I, sections 2 and Constitution Article provide:

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

“(3) whatever the free No law shall case control exercise, enjoyment inter- religeous opinions, or [sic] rights fere with the conscience.-” *4 any form

For a court a total ban on impose impinges on person person’s pastor contact and the between person’s enjoyment that free exercise and may impose conditions religious opinions. judge Although 334

necessary for a child’s permitting welfare before reestablish- ment of parental custody, when the conditions also affect the parents’ constitutional rights, they strictly must be tailored to do no more than necessary what is for the child’s welfare. may required Parents not be to choose religious between their practices beliefs and and their children when there is no compelling reason for them forcing to the choice. Carroll v. Anne, 175, 183, Princess 347, US 89 Ct 21 L S Ed 2d 325 (1968); Brown, 599, v. 607, 1144, 366 US 81 S Ct 6 L Braunfeld (1961); Tucker, Ed 2d 479, 488, Shelton v. 364 US 81 S Ct 247, (1960). L5 Ed 2d 231 Those federal decisions accord with the proper interpretation Constitution. See Cooper Eugene 4J, 358, Sch. Dist. No. 301 Or 723 P2d 298 (1986); v. Church Scientology, App 203, 57 Or Christofferson (1982), 644 P2d rev den 293 Or cert den 459 US

Parents assert that the challenged condition is not the least restrictive means available to protect Mark. suggest many existence of less restrictive alternatives which, they claim, protect would be sufficient to the child and would be less burdensome their religion. exercise of their One would restrict contacts between Sherman and the and their child to those pertain solely which would to their religious beliefs and practices. We cannot accept that alter native, compels because the record the conclusion that parents’ religious beliefs and practices, as directed Sher man, formed the basis for disciplining Mark. Parents also suggest ordered, that the court could have that simply, Sher play man no role in the disciplining might Mark. That be appropriate, and might parents’ it not affect contact with Sherman on matters that would not endanger the child. Given importance issue, the possibility of developments further since the date of the order and the necessity a carefully crafted order arrived at between the court, parents CSD, we remand for determination of the least restrictive limitations that are now necessary and feasi protect ble to child and for other appropriate action. In disposition, view of our the federal constitutional claims lead to the same result. 12;

Reversed and remanded as to condition otherwise affirmed.

335 DEITS, J., concurring. specially my to several of concerns. separately highlight I write protecting the strong has a interest the state It is clear that child, welfare of the health and psychological physical responsibil- the right, has the indeed The state Tucker. Mark only Mark to his physical custody of to return ity, further to ensure that of conditions crafted fulfillment upon however, conditions, may not occur. These abuses will not in and freely participate to overly upon parents’ right impinge responsibility is our to of their choice. It religion exercise the unfortunately have carefully, which balance these interests conflict, upon presented come into based the circumstances Ellsworth, The of Oliver a member this case. words and later Chief Justice Constitutional Convention States, apt: are United liberty, rights I I would

“But while assert the power right, to deny not that the civil has some cases prohibit religion. has interfere matters It to impieties; open punish because the gross immoralities and Quoted in practice example is of detriment.” of these evil Brown, 599, 600, 1144, L Ed US 81 S Ct Braunfeld that, majority I juncture, agree At this with Mark, overly it although protect condition 12 is crafted impinges upon parents’ rights constitutional to exercise their I religion and that less means are available. believe restrictive that, remand, condition the court must draft substitute any way determining or prevent which will Sherman from may of the child. It well be implementing disciplining com- require parents advisable to to move out the church into It is crucial pound separate housing. autonomous also order, that, pursuant dispositional to the court’s CSD care- fully compliance the court’s order after monitor with monthly reports to the return of the child and that CSD’s continuing investigation If the regular court be detailed. endanger- non-compliance or other reveals with order welfare, changed circumstances ment the child’s those in restrictions like those in condition might well result States and United being within the bounds Constitutions.