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Court of Appeals Delivers Stinging Rebuke to Texas CPS / Lawyers Cry Foul in FLDS Seizures
Mary Flood
The State of Texas thought they were on a roll. As the Dallas Morning News reported, "Texas, calling a polygamist sect an abusive environment, is poised to tell its mothers they will lose their children [forever] unless they distance themselves from portions of their religion. Some lawyers believe this could mean women would never be able to return to the Yearning for Zion ranch in Eldorado, and would have to choose between some of their beliefs and their children." The Texas legislature is even demanding that the FLDS church pay the $30-50M price tag for this trumped up raid which illegally took away all their children. However, all of this arrogant intervention was stopped in its tracks as the Texas Court of Appeals finally intervened with a scathing indictment of the judge who authorized this travesty of justice without a shred of credible evidence.
In a dramatic ruling, the Court of Appeals ruled in favor of all 48 mothers of the FLDS religion and declared that Texas Child Protective Services (CPS) violated Texas law in their mass roundup of 468 children from the polygamous YFZ ranch. The court correctly zeroed in on the two major violations committed by these over-zealous "child protectors" --treating the entire community as one household, and failing to provide any specific evidence of individual abuse in the mass custody hearing in which all the children were ruled "at risk."
This is a major victory for the rights of parents everywhere to be free from the arbitrary edicts of government bureaucrats claiming the right to "save the children." No matter how much government may disapprove of a family's beliefs or their marriage arrangements, child protective services must have evidence of specific abuse by the parents in order to justify the removal of the children by the state. It is simply unacceptable in law to say that mere membership in a church, or political party, or adherence to a belief in polygamy disqualifies parents from keeping their children. Even when specific evidence of abuse is found within a portion of a community of belief, it is improper to indict all members of that group as a party to the crime without specific evidence on each person. Only the individuals involved can be prosecuted.
The trial court (which issued the search warrant against the ranch based on bogus information) now has 10 days in which to comply with this writ of mandamus. The state may appeal to the state Supreme Court, but the law is quite clear on this matter, so the chances of getting this overturned are slim--unless the Supreme Court is inclined to simply disregard the law as did the original judge (Barbara Walther).
There is also another great evil involved in the artificial barriers placed upon parents trying to get their children back. Instead of the burden of proof being upon the state to show that a parent or parents are a continuing and imminent threat to the child, CPS uses what they call "service plans" to set up criteria that parents must meet to "qualify" to have their children back. In other words, the children are held ransom to an externally applied set of criteria that often violate a person's right to religious or political freedom of thought. This amounts to extortion, especially when such criteria involve denying deeply held religious beliefs. The state tried to justify these distorted demands by saying they were created by credentialed and "culturally sensitive experts." Again, the arrogance of these "professionals" to always presume they know better than parents is tragic. (From Rod Remelin)
By MARY FLOOD
Many lawyers for children and parents in a Texas polygamist sect are boiling mad about the growing number of legal errors they claim the state has made in seizing and holding more than 460 children.
From the way officials handled an April anonymous phone tip about a sexually abused girl allegedly at the sect's ranch, the seizure of the children, the court hearings and the questioning of children and parents alike, many attorneys are crying foul.
The lawyers breathed a slight sigh of relief Thursday when some of their cries seemed answered by an Austin appeals court. The 3rd Court of Appeals said the state had no right to seize most of the children and the local trial judge incorrectly left them in the custody of Child Protective Services.
But by Friday, CPS and its umbrella agency asked the Texas Supreme Court to overturn the appeals court decision and leave the children where they are — in foster homes and camps around the state, most far from their home at the Fundamentalist Church of Jesus Christ of Latter Day Saints' Yearning for Zion Ranch in West Texas.
"They have created chaos. They don't know what to do. This case has holes in it the size of the Grand Canyon," said Laura Shockley, a Dallas family law specialist with six clients in the case. "There is no way to fix this."
She and other lawyers say some of the seized people, especially those who it turns out are 18 or older, have potent federal civil rights lawsuits against the state.
Allegations of errors
In papers filed in court and in interviews for this story, lawyers for the children and parents have complained that the state (primarily through CPS, but also through law enforcement and the courts) has made a number of legal errors including:
•Insufficient investigation of the initial tip and tipster.
•Insufficient investigation at the ranch about who was in immediate danger.
•Treating the entire compound as one household, though there were 19 separate residences.
•Taking all children instead of just the post-pubescent girls who could have been subjected to the feared sexual abuse by older men.
•Insufficient evidence presented at the first hearing for the children.
•The hearing should have been for each individual child, not all in one hearing.
•Shifting burden of proof to parents to prove innocence, rather than having CPS prove guilt.
Amy Warr, an Austin appellate specialist who is working on a response to the state's request to the Supreme Court, said she got involved in the case because of how badly the state has handled it.
"The result is a lot of people did not get due process. As a lawyer and a mother I know the reason the Legislature set high standards before the state can take kids," Warr said. She said those standards were not met.
The lawyers complain that CPS was supposed to consider removing only children in immediate danger, not children who might grow up to abuse others. The lawyers said CPS was supposed to explore alternatives before removing any children. The appeals court made those same points.
Patrick Crimmins, a spokesman for the Texas Department of Family and Protective Services, the primary state agency involved, said Friday that the agency had no comment. But in its request to the high court the agency defended its actions.
"This case is about adult men commanding sex from underage children; about adult women knowingly condoning and allowing sexual abuse of underage children; about the need for the Department to take action under difficult, time-sensitive and unprecedented circumstances to protect children on an emergency basis," states the request to the high court.
Wrong legal standards
The state agency also argued that the appeals court overstepped its bounds and used the wrong legal standards and processes when it told the local court to send some of the children back home.
"It seems likely they initially started trying to do the right thing. But when they proceeded beyond questions limited to young females, or taking young females into custody, they got into real trouble with the law," said Tim Lynch, director of the Washington, D.C.-based Cato Institute's Project on Criminal Justice.
Susan Hays, a Dallas appellate lawyer who is representing a 2-year-old, said this was a "perfect storm legal disaster."
One exacerbating problem, she said, was basic funding. "The state put money into the raid but not into the courts," she said.
She said copies, an overhead projector, enough assistants to be sure children didn't drop through the cracks without representation were all missing, causing children and parents to have their rights abridged. "The courts were dying — in need of resources."
Donna Broom, a South Texas College of Law clinical faculty member who has volunteered to represent a child, said many things are problematic and atypical here, compared to normal CPS cases.
"They normally have to prove the danger is immediate and to show they can't use other reasonable alternatives to removing the child," she said. "Normally, there is more investigation."
She and all the lawyers are in limbo about what will happen next in their cases. Individual hearings scheduled for Tuesday have been postponed as the local judges try to decide what to do next, given the appeals court decision and the pending request of the Supreme Court.
"Every day is a new day in this case. Every attorney is trying to digest what's happened," Broom said.