Yearning for Evidence
The sad parallels between the Texas polygamy raid and Guantanamo.
By Dahlia Lithwick
Posted Thursday, May 22, 2008, at 6:09 PM ET
For those of you who haven't been following the many legal twists and turns of the Texas polygamy story, today's news of a state appellate court ruling that child welfare officials impermissibly seized hundreds of children from a polygamist ranch over three days in April will be shocking. It seemed an open-and-shut case of child abuse, right? Young girls married to much older men, trapped on a compound, bearing babies. The question was not so much why the state removed 465 children from the Fundamentalist Church of Jesus Christ of Latter-day Saints on April 3 but, rather, what the heck took them so long?
More recent reporting has shown that the legal apparatus intended to protect abused children in Texas was strained to the breaking point by what turned out to be one of the largest child welfare cases in American history. Earlier today, attorneys for Child Protective Services confirmed that 15 of the 31 "child" mothers placed in foster care were actually adults. One is 27. A 14-year-old removed as a child mother apparently has no children. The state had raided the ranch after a 16-year-old girl called an abuse hotline saying she had been beaten and raped by her 50-year-old husband, but that girl has not been found. And interim custody placements made parental visits difficult, if not impossible. Seized children were not even permitted to hear sect prophet Warren Jeffs' name. The original custody proceedings had been hasty, chaotic, and confused. And estimated court costs were being projected at $2.25 million (before lawyers' fees).
In other words, what was intended as a noble effort suddenly got mired down in tricky factual disputes, cultural and religious clashes, and the practical necessity of warehousing hundreds of human beings for an indefinite period of time. If this sounds a whole lot like the Bush administration's fruitless, costly, and ultimately cruel exercises in mass justice at Guantanamo Bay, that's because the parallels are hard to miss. In both cases, government actors hurled themselves at a problem with the best of intentions. The prospect of averting just one more terror attack, or protecting just one more molested child, has a way of making all those technical legal details seem trivial. But both cases have been plagued by glaring errors of fact and identification: Names and ages and associations were all jumbled up, hearsay and double hearsay piled up in place of real evidence. At the time, it probably seemed like all the who's and where's could eventually be sorted out later. But there were real costs to surging forward ahead of the legal niceties.
The most important parallel between the seizure of the 465 children from the Yearning for Zion Ranch and the warehousing of 775 alleged prisoners at Guantanamo Bay in 2002 is that legal processes are slow and careful and cautious?-or, at least, they trend that way over the long haul. That makes them poorly suited to exigent situations in which the rights of hundreds of different individuals are at risk. It also makes them poorly suited for grand political gestures.
In ruling that a lower-court judge exceeded her discretion when she ordered the state to take custody of children from the FLDS, the 3rd Court of Appeals did not find that there were no pregnant girls on the compound or that there was no risk of future abuse of others. In its brief opinion, the court merely found that the mass removal was strong medicine for which the state had provided insufficient justification.
"Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure," wrote the court. "It is, unfortunately, sometimes necessary for the protection of the children involved. However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children, and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary."
The court went on to reject the two central arguments proffered by the state: that evidence of a handful of pregnant minors was enough to prove that all the children were endangered, since they lived under a single "umbrella of belief," and that all the children reside in an abusive "household" because the entire ranch constitutes a single home. Nope, said the court. The raid swept too broadly in seizing prepubescent children who were in no imminent danger. Minors residing in different households faced no immediate physical danger, either. In the end, most of the 400-plus children were grabbed merely because they shared a "pervasive belief system," and in the eyes of the appeals court, that simply doesn't rise to any kind of imminent physical danger. Some of these children may well face harm someday, but that wasn't reason enough to grab all of them on April 3.
You may well be horrified by the prospect of hundreds of children being returned to a compound in which a girl's highest aspiration is to be married, at age 15, to a guy born when Harry Truman was president (a guy whose other wives are old enough to be your grandmother and?-in some cases?-may even be your grandmother). But what the Texas appeals court found today was that your horror alone, or the horror of the incredibly well-meaning folks at Child Protective Services, does not rise to the legal standard of imminent physical danger to that child. There are formal legal steps to be taken before removing a child from her home and family, and you don't get to cut corners in the interest of grand symbolic gestures, even when the grand symbolic gesture is that incest, abuse, and polygamy have no place in America.
A long history of eliding detailed legal rules and procedures is the reason we've yet to see a single trial end in a conviction at Guantanamo Bay. Let's hope it will not now prove the reason we don't see a single conviction at the Yearning for Zion Ranch.
Until it is shown conclusively that the allegations of child abuse are wrong, I will not feel any jusice has been served here.
The frustrating part is that this raid will be a costly, damaging failure that will accomplish very little. In fact... by eliminating any chance that social services can reach out to families in need within this community, it makes their lives much worse.
edgarblythe wrote:Until it is shown conclusively that the allegations of child abuse are wrong, I will not feel any jusice has been served here.
That's not how the rule of law works. The way it works is that people are presumed innocent until proven guilty of a crime. Child abuse is a crime. Therefore it was up to Texas to prove that the children in this lawsuit were victims of it. The court found that the state didn't carry its burden of proof.
So justice has been served by the court's decision. The only thing that hasn't been served is your unjust and bigoted demand that fundamentalist Mormons be presumed guilty of child abuse until proven innocent. But America is a free country, where suspects don't have to prove their innocence to anyone, including you. If that contradicts your feelings about justice being served -- too bad for your feelings.
CPS plans to appeal YFZ Ranch custody ruling to Texas Supreme Court
(By ROBERT T. GARRETT and EMILY RAMSHAW / The Dallas Morning News, May 23, 2008)
AUSTIN - Texas Child Protective Services will ask the state's highest court to keep a polygamist sect's children in state custody, following a Thursday appeals court ruling that ordered the youngsters be returned to their homes.
Texas Supreme Court spokesman Osler McCarthy said attorneys for the state called Friday morning and said they'd be "filing an action in this court" later in the day.
On Thursday, a state appeals court ordered many though perhaps not all of a polygamist sect's children returned to their parents Thursday, saying Texas failed to prove they were in physical jeopardy and urgently needed to be separated from their families.
The mere existence of a belief system that may condone polygamy and "spiritual marriages" involving underage girls is not by itself enough evidence to justify the removal of some 460 children from the sect's ranch, said a three-judge panel of the Austin-based 3rd Court of Appeals.
In their unanimous opinion, Republican judges Kenneth Law, Robert Pemberton and Alan Waldrop said Child Protective Services had to show every individual child was at imminent risk of physical harm and simply had to be swept into foster care. CPS instead offered only sketchy evidence to a trial court last month ?- and none about whether it explored less intrusive ways of protecting kids, the judges said.
CPS was tight-lipped about its plans late Thursday.
On its web site, CPS said, "While our only duty is to the children, we respect that the court's responsibility and view is much broader. We will work with the Office of Attorney General to determine the state's next steps in this case."
Meanwhile, members of the Fundamentalist Church of Jesus Christ of Latter Day Saints and their lawyers exulted.
"It's just the most unbelievable ," sect spokesman Willie Jessop, reached moments after he learned of the court's decision, said, his voice breaking with emotion. "It's beyond words right now."
While sect members "are elated," Mr. Jessop said there "won't be any celebration until little children are hugging their parents."
In their nine-page opinion, the appellate judges refrained from blistering CPS but nonetheless demolished its legal rationale for removing all children from the sect's Yearning for Zion ranch in Eldorado after an April 3 raid.
CPS showed that 20 sect females had become pregnant between the ages of 13 and 17. The judges said 15 of them now are adults. The five who remain minors "are alleged to have become pregnant at the age of 15 or 16," the judges said.
They said, though, that "there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation" that the sect "condoned underage marriage and sex."
CPS presented no evidence that sect boys or the group's girls who have not reached puberty were victims of sexual or physical abuse, or likely to be, the judges said.
They also said removing hundreds of children under such circumstances is an "extreme measure" and that CPS didn't make a reasonable effort "to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children."
They said the 51st District Court in San Angelo ?- presided over by Judge Barbara Walther ?- "abused its discretion in failing to return the children" to their mothers after CPS put on such an insufficient amount of evidence before her last month.
CPS "did not carry its burden of proof" at so-called adversary hearings before Judge Walther on April 17 and 18, the judges said.
In San Angelo, hearings that have been held all week on what sect parents need to do to get their children back were immediately halted ?- at least until after the holiday weekend.[lmetts1] "It is a great day for families in the state of Texas," said lawyer Julie Balovich of Texas RioGrande Legal Aid.
Martin Guggenheim, a child welfare and constitutional law expert at New York University, said the decision is "vital to civil liberties," and that CPS ?- though acting in good faith ?- clearly didn't present enough evidence to justify removing the sect children.
"This is about whether we allow state officials to do what they wish when they are doing it with good intentions, or whether we say that's not really enough," Mr. Guggenheim said. "I'm proud of a court that says that's not really enough."
Lawyers said that even if CPS doesn't appeal, the ruling, at least initially, affects only 41 sect mothers.
They include 38 who are represented by Ms. Balovich's Austin-based group and who last month sought an order freeing their children; and three others who on May 9 filed a similar request.
Dallas corporate appellate lawyer David Schenck ?- who wrote the second group's request, known as a petition for a writ of mandamus ?- said he expects all of the estimated 140 mothers affected by CPS' raid to now ask Judge Walther to return their youngsters.
"I think she likely will comply with it, unless the Texas Supreme Court does something," said Mr. Schenck, who volunteered his time to help Fort Worth-based Legal Aid of Northwest Texas, which represents 58 sect mothers.
CPS said it respects the judges' authority, though it expressed no regrets.
The agency posted to its web site a statement saying child-abuse investigators found "a pervasive pattern of sexual abuse that puts every child at the ranch at risk." It said sect records listed "as wives" nine girls who are 16 and 17 and who until last month lived at the ranch.
Gov. Rick Perry said through a spokeswoman he's "confident that the state's lawyers will review the appropriate next steps in this case to ensure the safety and welfare of the children involved."
Experts on civil procedure said Attorney General Greg Abbott would have to seek immediate review by the state Supreme Court if Texas has any hope of keeping custody of the children.
Lonny Hoffman, a University of Houston law professor, said if the Supreme Court decides to hear any appeal brought by Mr. Abbott, it probably would leave the children in CPS custody ?- for fear of doing "irreparable harm" ?- while justices consider the case.
"If the 3rd Court of Appeals is wrong, and those kids are in danger, [returning them to their families] is something they can't repair," Mr. Hoffman said.
Alexandra Albright, a civil procedure expert at the University of Texas law school, said the state is probably already working on its request to the Supreme Court, and that the court would probably act fast to accept the case. She agreed the state would likely maintain custody of the children pending resolution of the case.
"This case ?- there's a lot of press, a lot of kids involved," she said. "We all know what the considerations are. I'm sure they would act pretty quickly."
One expert on the sect said there's a chance some children, if freed, would be moved across state lines while others would return to the ranch.
Ben Bistline, a Utah-based author and former sect member who left the breakaway Mormon group voluntarily, predicted that the children with monogamous parents would probably return to the ranch, while those living in polygamous households would be forced to scatter.
"Those afraid of being arrested will leave with their families," he said. "They'll just come back here, or go to another compound in Colorado City, in South Dakota, in Idaho."
Thomas wrote:edgarblythe wrote:Until it is shown conclusively that the allegations of child abuse are wrong, I will not feel any jusice has been served here.
That's not how the rule of law works. The way it works is that people are presumed innocent until proven guilty of a crime. Child abuse is a crime. Therefore it was up to Texas to prove that the children in this lawsuit were victims of it. The court found that the state didn't carry its burden of proof.
So justice has been served by the court's decision. The only thing that hasn't been served is your unjust and bigoted demand that fundamentalist Mormons be presumed guilty of child abuse until proven innocent. But America is a free country, where suspects don't have to prove their innocence to anyone, including you. If that contradicts your feelings about justice being served -- too bad for your feelings.
Thomas,
Did edgar actually make an "unjust and bigoted demand"? The child abuse allegations have not been conclusively resolved yet. Neither "unjust" "bigoted" nor "demand" applies to what edgar said.
Commentary: Appellate court wrong on FLDS
(By Sunny Hostin, CNN, May 23, 2008)
It sounds like legal mumbo-jumbo.
The Texas Court of Appeals for the Third District found the Texas Department of Family and Protective Services failed to demonstrate there was either a danger to the physical health and safety of FLDS children, or an urgent need for protection of the children requiring immediate removal from their parents. The court also found the Department failed to make reasonable efforts to prevent the children's removal from their parents' custody.
What does all that mean without the legalese?
The court found no legal basis for FLDS kids to be taken from their mothers. They effectively think the district judge got it wrong.
And they told the district court judge she had 10 days to make it right or else. Well I think the appellate court got it wrong. Why?
Isn't this a polygamist ranch we are talking about? Under Texas law, it's illegal to be married to more than one person. Weren't all of these children living on a ranch purchased in 2003 and built by Warren Jeffs, the self-proclaimed prophet of the group, who was convicted last year in Utah of being an accomplice to rape?
Yes they were.
Weren't there 20 girls living at the ranch who had become pregnant between the ages of 13 and 17 and "spiritually married" to old men picked for them by Jeffs or his followers?
Yes there were.
And if you live on this ranch, don't you believe in polygamy, arranged marriages between young girls and old men, and that Jeffs is a prophet?
I would think so.
And if you are a young girl that lives on this ranch, isn't it true you will also be "spiritually married" to an old man chosen for you? Yes to that too. And isn't this dangerous for the children? What do you think?
There are some fundamental problems with the court's opinion. The court states that because not all FLDS families are polygamous or allow their female children to marry as minors, the entire ranch community does not subscribe to polygamy. Wrong.
They are living on a polygamist ranch and are members of the church -- a sect that left the Mormon Church so it could practice polygamy.
The court even reasoned that under Texas law, "it is not sexual assault to have consensual intercourse with a minor spouse to whom one is legally married" and that Texas law "allows minor to marry -- as young as age 16 with parental consent and younger than 16 if pursuant to court order." Wrong again.
The polygamists are not "legally married" to anyone since it is illegal to marry more than one person. They are "spiritually married" and abusing young girls. Finally, the court also states there "was no evidence that .... the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims if sexual or other physical abuse."
Oh, I get it. The Department should wait until the kids are actually abused before doing anything. It's almost as if the Department can't win: If they act, they are overzealous; if they don't act, they are not doing the job entrusted to them -- protecting our children.
So how do we make this right? The Department now has the option of appealing the decision to the Texas Supreme Court.
Let's hope the Department takes that option and let's hope that court gets it right.
This last article explains a lot.
Columnists are paid to reflect and express public prejudice. It is the duty of judges to follow the law while ignoring public prejudice in favor of reason.
If columnists ever become judges... it won't just be polygamists who are in a whole load of trouble.
I don't see how any ethical judge can do anything other than follow the law-- meaning these kids, assuming there is no legal reason to keep them, will be sent home with their families.
No easy answers
(Fort Worth Star-Telegram Editorial, May 24, 2008)
No one disputes that removing more than 450 children from their parents in the Yearning For Zion ranch outside Eldorado had to be disruptive -- even traumatizing -- to those youngsters. The question is whether the children's interests were better served by placing them in foster care than by leaving them with a sect in which girls are made to marry and have children while still children themselves.
It's hard for child welfare officials to win. They're accused of over-reacting because they removed all the children from the Fundamentalist Church of Jesus Christ of Latter Day Saints compound. Had they not acted, they might be accused of not protecting children from sexual abuse.
On Thursday, a three-judge appellate panel in Austin ruled that officials acted hastily, that they hadn't proved that a large number of younger children were in immediate danger and that a trial judge should have returned almost 130 children to their families after custody hearings in April.
But on Friday, the state appealed to the Texas Supreme Court, saying the appellate panel wrongly second-guessed the trial judge and would force the Texas Department of Family and Protective Services to return children to an atmosphere of "continuing sexual and emotional abuse."
Ruling on a petition filed by about three dozen mothers, the court said that state District Judge Barbara Walther erred in not overruling the decision to remove the children from their families on an emergency basis. The court's reasoning: Though the state identified 20 women at the ranch who became pregnant while they were between 13 and 17 years old, all but five now are adults, none lived with the women petitioning the court, and there wasn't evidence younger children had been physically or sexually abused.
The appeals court rejected the state's arguments that the ranch community was one "household" and that all the children were in danger because of the "pervasive belief system" that young girls should marry and have children. The court also said that the state hadn't tried ways of protecting the children that would keep families intact.
The sect's belief system by itself doesn't put the children in physical danger, said Chief Justice Kenneth Law and Justices Bob Pemberton and Alan Waldrop.
"Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the department contends, there is no evidence that this danger is 'immediate' or 'urgent' ... with respect to every child in the community."
But in its Friday petition, the agency argued that Walther had done "what was prudent and cautious based on the evidence available" at the hearing and that the appeals court engaged in "a poor analysis of misstated facts."
Though the ruling would require that children be returned to their parents, agency lawyers argued that it's still not clear which children belong to which parents.
The authenticity of the abuse report that triggered the state's raid now is in question, but it's clear the community encouraged, even forced, underaged girls to have children.
The case has raised difficult legal, moral and social questions. And no doubt it's agonizing for families to be split while the legal process runs its course.
Children and their parents should be reunited as soon as possible -- but not until state officials and the courts are assured that children now in foster care aren't being returned to a situation that clearly risks their welfare.
edgarblythe wrote:Until it is shown conclusively that the allegations of child abuse are wrong, I will not feel any jusice has been served here.
That's not how the rule of law works. The way it works is that people are presumed innocent until proven guilty of a crime. Child abuse is a crime. Therefore it was up to Texas to prove that the children in this lawsuit were victims of it. The court found that the state didn't carry its burden of proof.
So justice has been served by the court's decision. The only thing that hasn't been served is your unjust and bigoted demand that fundamentalist Mormons be presumed guilty of child abuse until proven innocent. But America is a free country, where suspects don't have to prove their innocence to anyone, including you. If that contradicts your feelings about justice being served -- too bad for your feelings.
