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

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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.

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