9/23/09 – TG: Arkansas DHS wants federal judge to dismiss Alamo civil lawsuit

Texarkana Gazette
September 23, 2009
By: Lynn LaRowe

Arkansas DHS wants federal judge to dismiss civil lawsuit

The Arkansas Department of Human Services wants a federal judge to dismiss a civil lawsuit filed by Tony Alamo Christian Ministries because the “bad faith” necessary to keep the case alive doesn’t exist, according to a brief filed Monday.

The suit was filed in April on behalf of the ministry and two fathers with children in foster care. DHS has described the civil action as a thinly veiled attempt to get a federal court to meddle in state court custody proceedings. Federal courts may not intervene in state cases except in rare circumstances such as bad faith.

“Plaintiffs argue that DHS acted in bad faith because it must have known about child abuse for months yet failed to act until the police and FBI decided to raid the compound in September 2008,” the brief stated.

In a filing by ministry attorney Phillip Kuhn made public last week, DHS is accused of knowing for at least 45 months that children were allegedly being abused but did nothing.

“In other words, plaintiffs argue that defendants’ failure to act earlier constitutes bad faith in acting later …Though referred to as a ‘pretext,’ plaintiffs’ argument is more akin to a waiver argument; DHS waived its right to protect the children by not acting sooner. Oddly, plaintiffs complain because DHS failed to remove their children earlier than they did.”

The brief also asserts that Kuhn confuses knowledge about abuse and neglect allegations possessed by criminal investigators working for the Arkansas State Police with what was known by DHS.

ASP Sgt. John Bishop testified in a deposition about a meeting with DHS conducted not long before the Sept. 20, 2008, raid on Fouke, Ark., ministry properties and other meetings being planned for the future.

None of the DHS administrators named as defendants in the suit were present at the meeting with ASP, the brief said.

DHS casework supervisor Aquonette White testified in her deposition she was unaware of “the Tony Alamo case” until the day before agents executed FBI and ASP search warrants.

The brief also notes there is no evidence DHS received hotline calls reporting abuse or neglect that would have triggered an investigation.

“Consequently, the plaintiffs’ basic premise—that DHS acted in bad faith because Sgt. Bishop was somehow required to report the abuse he uncovered to DHS months before DHS acted—is incorrect for two reasons. First, Sgt. Bishop had no such duty. He is a criminal division investigator not a CACD (Crimes Against Children Division) civil investigator,” the brief said. “Second, plaintiffs fail to produce evidence that a report was called into the hotline prior to the FBI raid for CACD to investigate. Plaintiffs simply assume that there was such a report.”

The brief further contends the answers given to “interrogatories,” or questions, the bad faith allegations lack support.

In the responses, Alamo Ministries stated it could neither confirm nor deny whether any children were found by the Arkansas state courts to have been abused or neglected.

“Clearly plaintiffs are playing fast and loose with their claims,” the brief said. “How can the organization assert in its complaint that its rights were violated by defendants if it is unaware of the events in the state court proceedings? It is disingenuous to take the position on one hand that the rights of the organization have been violated by the removal and adjudication of the children, while on the other hand declare it is unable to admit or deny whether the children were found dependent-neglected, or abused and neglected.”

The brief argues that the Arkansas state courts, which include the circuit courts, courts of appeal and state Supreme Court, are capable of handling the claims of constitutional rights violations asserted by the ministry and Alamo-connected parents.

Once U.S. District Judge Harry Barnes has considered the motions, exhibits and arguments submitted by both sides, he’ll make a decision regarding the fate of the lawsuit.

If he finds DHS acted in bad faith, the case may survive in federal court. If not, Barnes may dismiss the suit.

In: 2009 - (Trial year)

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