Child Protection v. the Constitution: Did Removal of 437 Kids Violate Parents’ Rights?

Happy Independence Day! Daily news updates resume on Monday.

Evidence

Child Protection v. the Constitution: Did Removal of 437 Kids Violate Parents’ Rights?

Posted Apr 22, 2008, 01:28 pm CDT
By Martha Neil

Updated: As the state of Texas proceeds with DNA tests this week to try to determine exactly who parents and siblings are in a controversial custody case that, at last count, involved 437 children, lawyers for the families—as well as some observers—are expressing concern about possible violations of parents' constitutional rights.

No one seems inclined to argue that the state exceeded its authority by removing teenage girls from a situation in which at least 20 of their counterparts living on a ranch run by a polygamous sect reportedly had become pregnant by age 16, or even earlier.

But more troubling is the planned separation from their parents of all other children who had been living at the Yearning for Zion ranch, including infants still being nursed by their mothers, even though there doesn't appear to be clear-cut evidence that at least many of them were neglected or physically abused, according to the Dallas Morning News and other media reports. A total of 77 of the 437 children removed from the ranch earlier this month by state Child Protective Services workers are children age two and younger.

Judge Barbara Walther so far has rebuffed pleas by nursing mothers that they be allowed to continue to care for their babies after DNA testing is completed, reports the Salt Lake Tribune. (However, since this post was originally written, authorities have apparently relented, as far as the babies are concerned. And, meanwhile, a state appellate court has agreed to hear an emergency appeal of the removal of all of the children, as discussed in a subsequent ABAJournal.com post.)

Authorities say they need to separate children from their parents while they investigate, because this will help them to determine what actually happened and proceed with their case without parental interference. However, parents point to minimal or nonexistent evidence of abuse concerning many of the children. And even a state expert admitted in his testimony last week that many of the children apparently have not been physically abused, although he considered the authoritarian role of their church to be "abusive," at least as far as teenage girls reportedly being pressured into "spiritual" marriages with much older men already married to other women are concerned.

The massive two-day hearing last week after which Walther upheld the state's custody of all of the children has been criticized as lacking requisite due process protections mandated under both the Constitution and state law. And Kevin Dietz, an attorney with Texas RioGrande Legal Aid who represents 45 mothers from the Fundamentalist Church of Jesus Christ of Latter Day Saints, said some of his clients did not even receive notice of the legal proceedings, let alone have a chance to tell their side of the story.

"They had no meaningful way to participate, and no evidence was presented against them," he says.

"I think it is an incredible and astounding exercise of police power," James Harrington, a civil rights attorney, tells the Dallas newspaper. "You can't take away a kid from their parents by saying, ‘Hey, maybe later on there might be some abuse.' It's a way of flipping the Constitution around so that they now have to prove they're innocent instead of the state having to prove they're guilty."

However, Jack Sampson, a family law professor at the University of Texas, says the law sets a low legal threshold for temporarily taking custody of children, in an effort to protect them, as the state has done here. "You don't have to prove abuse at that first stage," he says.

Even with the help of DNA tests, figuring out who's who, among the parents and children, won't be easy because of the group's long-standing interrelationships, predicts the New York Times. And the central question of how old many of the teen mothers were when they gave birth, the newspaper says, will, by necessity, focus not on DNA tests but "spotty and ambiguous" community records.

Additional coverage:

Salt Lake Tribune: "ACLU says constitutional rights threatened in Texas FLDS child custody proceedings"

Updated at 8:15 p.m., central time, on April 24, 2008, to include information about subsequent ABAJournal.com post.

Comments

Report Abuse

Posted by American - 2 months, 1 week, 6 days, 17 hours, 35 minutes ago

In almost, if not every state the CPS can remove ..AND KEEP.. children .. without a warrant..
without evidence ... without a jury ... without a trial!

The “hearings” are not trials ...and.. nearly all “hearings” are held with the public barred.

Records of “hearings” kept from the public and news media AND are often SEALED for YEARS.

There is nothing similar to a fair trial.
***
Please do not sit back and allow total disregard for
our rights, the law, our CONSTITUTION and the freedoms our soldiers are fighting and dying for.

At least you can SPEAK UP and require our Governors, Senators and Representatives to DO WHAT IS RIGHT.

***

Some studies show that more children are abused ... physically, sexually and mentally in foster care than when left with “accused parents”.

The cost of close supervision by DEPARTMENT employees is substantially LESS and FAR MORE effective than removal.

Why did The Texas CPS not simply have the men and/or any suspected abusers removed and LET THE CHILDREN STAY where they were happy and comfortable.

Do a search for CaptiveFLDSChildren to learn more about the Texas situation.
Posted by Alec - 2 months, 1 week, 6 days, 16 hours, 6 minutes ago

"No one seems inclined to argue that the state exceeded its authority by removing teenage girls from a situation in which at least 20 of their counterparts living on a ranch run by a polygamous sect reportedly had become pregnant by age 16, or even earlier.”

I think the parents involved in FLDS should argue that the state exceeded its authority.

There is no way that one phone call (by an alleged 16 year old that has yet to be found) can provide detailed information or testimony with respect to the alleged abuse of over 400 kids. Even if the allegations of sex with underage females prove to be true, this does not justify the confiscation of babies and teenage boys.
Posted by Merry Colin - 2 months, 1 week, 5 days, 18 hours, 15 minutes ago

At the MOST, the state MAY have had the right to “protect” the “child” who contacted them for assistance. (I find it hard to call a 16 year old a child. Of course, our states are determined to keep us all helpless by extending childhood via child labor laws, et al.) Any lawyer with a proper understanding of the constitution and a properly aligned moral compass would stand his/her ground and tell the judges, CPS, and other do-gooders to go to hell --- even at the risk of being held for contempt or being “disciplined” by the bar. It seems the FDLS women/mothers don’t have the inclination to do so, so their attorneys are bound to open their mouths on their client’s behalf. To do otherwise is a travesty. So which attorney will have the guts to step up to the plate (bench)? Betcha that NOT A ONE WILL! So why do these “oppressed” women even need a lawyer? What they need is a public uprising in support of their rights--- one so big that the “players” all leave this game, never to return to usurp the rights of parents or children alike.
Posted by Alec - 2 months, 1 week, 4 days, 14 hours, 54 minutes ago

http://www.sltrib.com/News/ci_9039576

“...a Texas appeals court agreed to hear arguments on whether the state can place more than 400 FLDS children into foster homes without giving their families individual hearings.
“
Posted by Matt Smith - 2 months, 1 week, 4 days, 1 minute ago

They’ll get their hearing.

It is the protection of the children, the “best interests” of the children that is of paramount concern. We sidestep constitutional rights (delay the requirement of a hearing) if we believe that there is some sort of “imminency” of danger to the lives of the children. That doesn’t mean we do not care about their constitutional rights, they will get their day in court, but the imminency issue warrants delaying the hearing (kind of like the exigent circumstance exception to search warrants).

Whatever was going on, on that ranch, it didn’t seem good. Emergency removal was necessary. For the children’s sake. If we are later found to be wrong, then we will have to apologize. Its the price we pay in order to ENSURE our children are protected. In the past, children would be abused - sexually, physically, emotionally, and nobody did anything. However, we are “stepping up to the plate” now.
Posted by Neera Kar - 2 months, 1 week, 3 days, 23 hours, 44 minutes ago

There are 5 comments posted so far and only one person really seem to think that it is better to be safe than sorry. Taking the custody of children when there is a doubt of abuse is the best way to inquire and help those who would need help. I am a mother and I would want protection first for my children or any one else who might need help. It may be true that some Foster parents may abuse children but it is the failure of the system that would get away from screening to be fit parents. But, abuse from one’s own parents, it is a shame, disgrace, mistrust and a breach of unwritten contract of parents with their own children. If a child can not be safe with his/her own family then the child is better off taking chances with the outside world. The Constiution argument is always twisted to get to the conclusion people want, the due process and rights are their as protection not as hindrence for safety.
Posted by me - 2 months, 1 week, 3 days, 23 hours, 28 minutes ago

Teenage girls, some as young as 13 (and possibly younger?) have been coerced / forced / brain-washed into “marriages” where they are coerced / forced / brain-washed into participating in sex. That is child abuse. Raising a boy to believe this is okay is child abuse. Leave the nursing infants with the mothers, with some supersion, but take the rest of the kids. And there is NO absolute right to PRACTICE a religion, just an absolute right to BELIEVE in a religion. Examples of this distinction would include human and animal sacrifice and the use of hallucinogens in religious ceremonies. Take these kids!

I also agree that the foster system needs to be fixed, but until more people are willing to accept foster kids into their homes, I don’t expect much to change in that regard.
Posted by Geri Hewitt - 2 months, 1 week, 3 days, 23 hours, 23 minutes ago

It is appalling to me that many of those who have posted do not believe these children were in danger. I certainly understand how the mothers and fathers feel being separated from their children, and I know that many of them cannot understand why. However, the culture of this ranch and other communities like it is completely unhealthy, not only for these young girls who may be subjected to “spiritual marriage” against their will and even before the age of consent, but also for the young boys who are raised to perpetuate that culture or are later exhiled so that elders can have their pick of the young girls.

I respect the dedication of these people to their faith, but there is something fundamentally wrong about that society. It’s time for the government to take action in order to help these children and, hopefully, force a change in that culture. The rescue of these children from that situation was certainly in their best interest, though it may not seem so to them or to their families now. I would never advocate taking children from their parents as punishment or deterrent, but perhaps, these communities will be forced to change if they fear such actions in the future.
Posted by stupefied - 2 months, 1 week, 3 days, 22 hours, 43 minutes ago

Yeah can you believe that they let Hasidic Jews keep their kids. THey believe that they need to mutilate an infant’s genitals and must mary within the community. We should take everyon’s kids away without due process - no telling what might go on. If we take them all away - we can try to find out if anything did happen to them and sort them all out later - after they have been completely screwed up by a dysfunctional and already overloaded foster care system. Great idea!
Posted by TXis4morons - 2 months, 1 week, 3 days, 21 hours, 46 minutes ago

The U.S. Supreme court has repeatedly affirmed that substantive due process rights include a person’s right to marry, retain relationships with one’s children or decide the composition of the household in which one lives. The Court has helds that parents have a fundamental right in raising their children, educating their children. Fundamental liberty interests triggers strict scrutiny, which requires a Substantial Relation between regulation and state interest plus a Compelling Governmental Goal with No Less Restrictive Alternative. In other words it is nearly impossible for the state of Texas to win because there are less restrictive alternatives to their chosen course of action. One is that Texas could easily have conducted an actual investigation of the alleged crimes and appointed regular supervision to monitor for any abuse. Instead, Texas knew or should have known that the specific allegation was false based on the source of the allegation. But, rather than question the reliability and veracity of the anonymous allegation, Texas swarmed through a whole community like Nazi storm-troopers and seized all of the children who are now being held in small cramped quarters and traumatizing conditions.
Posted by Jesse - 2 months, 1 week, 3 days, 21 hours, 27 minutes ago

I wish there was better coverage of this event from a legal standpoiont. So far, I haven’t seen any coverage that really tells what has happened. If the kids were taken as an emergency procedure w/out a court order, that would explain this initial hearing in which the kids were ordered to stay in Foster Care untill the full adversary hearing takes place. But the only reasoning I’ve seen for that decision is that 20 of the kids under age 16 had been pregnant. Not counting the infants, that’s a pregnancy rate of about 5%. But according to the latest count in the Gutmacher report, the national pregnancy rate of children age 15-17 is roughly 4%. So that alone wouldn’t justify taking children from their mothers. I have to assume there was some other overwhelming evidence about how those kids became pregnant. We’ve all just assumed that they became pregnant because they were raped by older men under the guise of an illigitimate marriage. But do we know that, or is it just speculation. I have yet to hear a news story that tells me why they believe this is happening in such an abusive way.

And I want to know which texas statute applies to this initial hearing. The UT proffesor in this article says that you don’t need to prove abuse at this first stage. So I may be refering to the wrong statute, but I assumed this hearing took place under 262.106 of the Tx Fam Code. The standard for continuing to hold the children under that variety of hearing is the “continuing danger to the health or safety of the child”. Not only does wording like “the child” reinforce that this is not a hearing that can apply to an aggragated group of children with different parents. But I would argue that “continuing safety” does mean “abuse”. Otherwise, how is the child’s safety in danger? These kids didn’t live in a getto w bullets flying overhead regaurdless of parental abuse. They lived in a protected compound about which we seem to know very little.

So regaurdless of the seemingly obvious due process violations, for a judge to have concluded that these children’s continuing safety was in jepeardy at their homes, there MUST be alot more information than the news is relaying to us right now. Otherwise, I would have to say this is a gross abuse of power by our governemtn, and any of us could find ourselves in a terrifying position should a false accusation be made about the way we treat our own children. I hope the coverage begins to divulge more information, because my default reaction in these scenarios is skepticism, and I’d much rather be able to follow such scary cases with a little more confidence that i’m not just watching a massive injustice take place before my eye.
Posted by Christine Tharp - 2 months, 1 week, 3 days, 19 hours, 18 minutes ago

No one has any constitutional right to abuse children and/or those who are weaker and unable to protect themselves. The children have a constitutional right to be protected from predators. If these “Stepford wives” choose to protect their abusive husbands over their children, then they have made their choice, havent they? Some of the nursing babies are with their 13-16 year old Mothers. The word “child” is used interchangebly w/ the word children in the Texas Family Code.. If one child is being abused in a family, in the presence of other children, why would only one child be removed? Of course all the children are removed to be protected from futher abuse until a full investigation can be completed. Always error on the side of caution when it comes to protecting children. SO can the child predators now have a constitutional defense to sexually abusing a 13 year old because it is his right as a parent or its covered in his religious belief? Or because he consumated the act on a bed in front of the church group? Get a grip. It seems like Texas is the only state that had the “cajones” to step up to the plate and remove our minor Texans from these predatory misogynist cults. The childrens rights should always be protected FIRST, to the exclusion of those who abuse the little ones.
Posted by Will - 2 months, 1 week, 3 days, 19 hours, 9 minutes ago

If you don’t believe statutory rape, rape in general, forced marriage, or physical beating abuse, then by all means let this cult do what they want. After all they must have a constitutional right to treat their property any way they please.
Posted by Reg - 2 months, 1 week, 3 days, 18 hours, 47 minutes ago

Once the children are in the system, the absent parents must begin paying childsupport or loose the driver’s license and in some cases these parent loose a state license. In any event the moral high ground is lost.
My question is: If there is a finding of civil rights violations, and the absent parents are already in the child support system, is there a credit for the childsupport due and unpaid? Is there a remedy for the negative impact such a injustice causes.
Posted by Matt Smith - 2 months, 1 week, 3 days, 18 hours, 16 minutes ago

Right to rear your own children? Substantive Due Process? Sure. Absolutely. The right to abuse your children according to the tenets of your faith? No. Never gonna happen.

So, how much evidence do you need to take the kids ? How much probable cause, reasonable suspicion? How many facts? How much corroboration from an anonymous call? Do we call in the warrant? Or can we just go in? What do we do, what do we do?
Police do not live in an ivory tower like the judges and attorneys who tell them how to do their job. They need bright-line rules in order to know, when that wolf growls at the door, what they will need --- IMMEDIATELY. No time for second guessing.

911 Operator: Call from “Sarah” about potential abuse.
Officer Smith: Ok, what do you think Jones, a child called, and claims persistent abuse is going on. Let’s get to the location quick and figure out what’s going on!

Officer Jones: Well, hold on a minute Smith. Before we go, we have to think about the parent’s right to procedural due process under the 14th amendment. The parents have the right to notice, a hearing, and have to have the opportunity to dispute the evidence against them. Besides, do you want to deny someone the substantive due process right, also a product of the 14th amendment, to rear their children in the way they see fit? And what about their 1st amendment right to the free exercise of their religion—Officer Smith, we have to take things into account!

Officer Smith: Go to hell Jones. I’m going to INVESTIGATE. If I screw up, I screw up. Children are in that home and they could be in danger.

Yes, the system has its flaws, and some foster parents also abuse their adopted children. The alternative is that we leave these children on the ranch, in an abusive environment, and get the petitions filed with the judge, give them notice, blah, blah, blah. Drastic measures call for drastic action.

I’m very proud of Texas law enforcement. They did what they had to do. I only wish they could have gotten to these kids sooner. The parents will get their hearing, until then, they have no rights to their children - children need a shield, they are not adults, they don’t know what we know. They can’t protect themselves. Sometimes, we must step up to the plate and provide the protection they need. Famous defense lawyer Gerry Spence once said, “Punish a child who is innocent of wrong, then you create the neurosis to which all crime emanates.” These children don’t deserve to be raised in that environment - the only alternative is the state system (with all of its flaws). If it lessens the chance for children to be abused, then go for it. Whatever we can do.
Posted by Jesse - 2 months, 1 week, 3 days, 16 hours, 53 minutes ago

Why are there so many comments here touting their belief that child abuse is bad? I’m not sure those guys have anyone to argue with. Nobody supports child abuse. The question here is whether there actually was any child abuse. There’s a distinct lack of information in the public about this case. Protections like Due Process are every bit as important as our protections for the children. It’s ludicrous to say that Due Process can be thrown out in order to “err on the side of caution”. The whole point of Due Process and extremely high burdens of proof is to “err on the side of caution”. They err on the side that ensures families cannot be broken up by our goverment without real, nonspeculative reasons to do so.

I want to know more about what actually happens in this so called religious community. The only “abuse” reported on the news was relayed by an anonymous phone call that now appears to be dubious. That’s no reason to toss out a case if it lead to the discovery of new evidence. But please share that new evidence. What do we actually know to be happening in this church.

And just where exactly do we draw the line for “abuse”. One commentator above wrote about forced circumscisions and extreme community pressure regarding marriage within the Jewish religion. What if the marriages in this Texas Church are not physically forced upon unwilling participants? What if they are forced only by the application of social pressure? Is that abuse? Plenty of kids get married at a young age, and the problem is worse in communities that are more accepting of those arrangements. Suppose we found out that social pressure in the hispanic community caused an uncanny degree of adolescent pregnancy and marriage, would we rush in to remove all children from those hispanic communities and try them all at once as a single conglomerate? Of course not. I just hope that they don’t try to do that in this case either. If they try to rush 437 children through in a single 14 day full adversary hearing, they will have no choice but to abandon the individual familes interests in favor of “kangaroo trial” that’s only interested in providing “evidence” of a stereotype for the entire church.
Posted by Matt Smith - 2 months, 1 week, 3 days, 12 hours, 31 minutes ago

The church was engaging in illegal activities. They were hurting children. Plain and simple. The judge found an immediate and substantial danger to the children as result of the evidence they found and the sworn affidavit of a sworn child protective service officer.

Of course everyone knows child abuse is bad. Of course we have to “err on the side of caution.” Of course we have high burdens and due process, but when the evidence is so clear - we “err on the side of caution” in order to protect the children. Even if it means sidestepping the due process rights for a little longer than normal.

Here’s the evidence:

The girl made several calls to a local family violence center beginning March 29 (multiple calls, not just one), saying she was forced last year to marry a 49-year-old man who already had six wives and who repeatedly beat and sexually abused her, the affidavit states. (Polymagy is against Texas law - police have, at the very least authority at this point to respond and check on the girl who made the call).

The girl, who said she has an 8-month-old and is pregnant with a second child, told the shelter one beating put her in the hospital with broken ribs, and church members warned “outsiders would hurt her, force her to cut her hair, to wear makeup and clothes and to have sex with lots of men” if she left, according to the affidavit. (evidence of mental abuse - substantial injury could result to the child - we are climbing our way up to probable cause).

The police go to the ranch, and try to figure out what this girl is talking about - they are doing an investigation. Of course they have a right to be there - given the description they were given. Later on, proper warrants are issues after more evidence is discovered, and an arrest warrant is made.

“The temple contains an area where there is a bed where males over the age of 17 engage in sexual activity with female children under the age of 17”

Statutory rape is against the law. Children are involved.

“The temple also contained multiple locked safes, vaults and desk drawers that authorities sought access to as they searched for records showing alleged marriages of underage girls as young as 12 or 13 to older men and births among the teens. The affidavit unsealed Wednesday mentions a 16-year-old girl who has four children.”

“The search warrant covered all documents related to marriages among sect members, including photos and entries possibly written in family Bibles. Texas has an outstanding arrest warrant for the man alleged to have been the girl’s husband, Dale Barlow, 50. He’s a registered sex offender who pleaded no contest to conspiracy to commit sexual conduct with a minor in Mohave County, Ariz., last year.”

“There is a pervasive pattern and practice of indoctrinating and grooming minor female children to accept spiritual marriages to adult male members of the YFZ Ranch resulting in them being sexually abused,” according to the sworn statement by Child Protective Services investigator Lynn McFadden.”

“Similarly, minor boys residing on the YFZ Ranch after they become adults are spiritually married to minor female children and engage in sexual relationships with them,” the affidavit states.”

So, what more do we want? It takes time to sort this massive case out, we’ll get to it when we can. Until then, separate the children from their parents - “err on the side of caution,” rather than conspire with fundamental relgious fanatics to rape or harm another child.
Posted by bms - 2 months, 1 week, 3 days, 10 hours, 37 minutes ago

It’s rape, it’s rape, it’s rape, it’s rape!

It’s not practicing a damn religion.

It’s child abuse and it’s a crime!!!!
Posted by TG - 2 months, 1 week, 15 hours, 10 minutes ago

For young children and babies, its hard to conceive how any benefit comes from separating them from their mothers. Put the mother and child together in a place where they can be monitored for gosh sakes.
Posted by The Local Crank - 2 months, 6 days, 16 hours, 17 minutes ago

"And there is NO absolute right to PRACTICE a religion, just an absolute right to BELIEVE in a religion. Examples of this distinction would include human and animal sacrifice and the use of hallucinogens in religious ceremonies.”

Please read the Free Exercise Clause of the First Amendment, the City of Hialea case and the Native American Religious Freedom Restoration Act.

“Officer Smith: Go to hell Jones. I’m going to INVESTIGATE. If I screw up, I screw up. Children are in that home and they could be in danger.”

Except here, the call was a hoax and law enforcement knew it was a hoax. The subject of the warrant was in Arizona, not Texas and law enforcement knew that, AND law enforcement waited FOUR ENTIRE DAYS after the hoax call before obtaining a warrant and searching the YFZ ranch. If crimes were committed, by all means, those who committed them should be punished. But the argument that there’s “no time” for Constitutional guarantees in this case is disturbingly close to the rationalization of torture.
Posted by Alec Dawson - 2 months, 1 day, 22 hours, 28 minutes ago

Is there any follow up being done regarding the CONSTITUTIONAL issues / challenges / proceedings in this case???

I haven’t seen anything published since this article was published.

Commenting has expired on this post.

ABA Journal - Law News Now

Evidence