A Return to Reason and the Rule of Law

Longtime Wizard readers know what strong confidence I have in the U.S. Judicial System. As a long time member of the ACLU, I remain confident that, given time, the courts will defend the minority against the oppression of the majority. It is the way our Constitution was designed and it almost always works.

But I was really starting to get worried in the case of the Texas Department of Child Services massive raid on the Fundamentalist Church of Latter Day Saints (FLDS) ranch in El Dorado, Texas. The armed assault based on a prank phone call, followed by the wholesale arrest and confinement of over 500 children and mothers, was one of the darkest days in recent American history.

The Texas CPS violated Texas law, the Texas Constitution and their own guidelines in removing, confining and then placing into foster care over 440 children, many as young as 1 year old, without even a hearing.

And the children and parents were left with a ragtag team of court appointed lawyers from all across the state who had neither the time nor the resources to fight the battle.

Even the neighboring states of Arizona and Utah were appalled by the out of control Texas Department of Justice. They took the unusual step of meeting with their FLDS communities to assure them that there would be no repeat of the Texas raid in their states.

Yesterday the Third Court of Appeals in Austin issued a sweeping ruling that should finally put both this case and the egregious actions by Texas law enforcement back on the right track.

From Michelle Roberts Associated Press story as published in The Huffington Post:

SAN ANGELO, Texas — In a ruling that could torpedo the case against the West Texas polygamist sect, a state appeals court Thursday said authorities had no right to seize more than 440 children in a raid on the splinter group's compound last month.
The Third Court of Appeals in Austin said the state failed to show the youngsters were in any immediate danger, the only grounds in Texas law for taking children from their parents without court action.

It was not clear when the children, now scattered in foster homes across the state, might be returned to their parents. The ruling gave a lower-court judge 10 days to release the youngsters from custody, but the state could appeal to the Texas Supreme Court and block that.

The decision in one of the biggest child-custody cases in U.S. history was a humiliating defeat for the state Child Protective Services agency. It was hailed as vindication by members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, who claimed they were being persecuted for their religious beliefs.

"It's a great day for Texas justice. This was the right decision," said Julie Balovich, a Legal Aid attorney for some of the parents. She was joined by several smiling mothers who declined to comment at a news conference outside the courthouse.

Sect elder Willie Jessop said the parents were elated, but added: "There will be no celebrations until some little children are getting hugs from their parents." He said his faith in the legal system will be restored "when I see the schoolyard full of children."

Over on Huffington, a commenter with the handle named iratior summed up my feelings best:

"I'm just as much against child abuse and spousal abuse as anybody else, but I think that the way the Texas authorities handled this case set some terrible precedents. When they began their actions, all they had to go by was the phone call; the person making the call could have been a complete fake, for all they knew."

"If you have children, would you want the government to have the power to seize them just because somebody who doesn't authenticate themselves and could be a complete fake calls a government agency and accuses you of abusing them? This concept of "guilt by accusation" is ruining our legal system."

Class Action Child Removal

I hope everyone saw the excellent Keith Morrison documentary on Dateline NBC last night chronicling the State of Texas raid on the Yearning For Zion ranch and the horrific aftermath for the families and children who had lived there.

Morrison put a human face on the tragedy. And it is worse than a tragedy. It is easily the worse abuse of power by any state in the history of the United States. Four hundred sixty two children were kidnapped and imprisoned in concentration camp like conditions by the State of Texas. And a court system that should be protecting the rights of these children, has completely ignored the facts of the case and issued rules based solely on rumor and prejudice.

Jessica Dixon, director of the child advocacy center at Southern Methodist University's law school in Dallas has called the raid "class-action child removal."

She added "I've never heard of anything like that."

Keith Morrison has brought the whole story to life.

Lorene: "Clinging to my skirt. My baby's sick."

Keith Morrison, Dateline NBC: "How old is your baby?"

Lorene: "Seventeen months -- and he's so sick."

Keith Morrison: "Who has him?"

Lorene: "I don't know, some woman has him, I don't know who it is."

Keith Morrison had full access to the Yearning For Zion Ranch. And the remaining parents were open and candid in their interviews. The compound was modern, clean and attractive. The school is modern and well equipped. The buildings, carved from limestone right on the ranch, are stunning.

However, the State of Texas wouldn't allow Keith to see any of the women and children they had forced to leave in mere minutes without explanation. Texas "protected" the women and children by locking them away and wouldn't even allow their lawyers to visit them, let alone the press or any of their families.

And although Texas law demands they have a hearing before children are removed into foster care, after three weeks in confinement, the children were placed into foster homes as far as 500 miles from their homes or parents.

The women and children were held first at the complex of Fort Concho, an hour away, then taken to this sports coliseum. Three weeks elapsed. During which the mothers said they were offered a choice.

Keith Morrison: "Were you allowed to leave at all?"

Mother: "If we left, we couldn't come back to our children."

So here they stayed. The media, and even their own lawyers, were refused entry.

The Associate Press reports that CPS officials have conceded there is no evidence the youngest children were abused, and about 130 of the children are under 5.

Teenage boys were not physically or sexually abused either, according to evidence presented in a custody hearing earlier last week, but more than two dozen teenage boys are also in state custody, now staying at a boys' ranch that might typically house troubled or abandoned teens.

Constitutional experts say U.S. courts have consistently held that a parent's beliefs alone are not grounds for removal.

"The general view of the legal system is until there is an imminent risk of harm or actual harm, you can't do that," said UCLA law professor Eugene Volokh.

The DATELINE Report continues with this sad anecdote:

Lorene, it turns out, is one of the tearful women just returned from that sports stadium, where she watched her children bused off to foster care. She worries most about Natalie, her only daughter.

Lorene: "She's always been very attached, she doesn't do well without me."

Authorities said they'd attempt not to separate siblings, but couldn't guarantee it as they spread the children around the vast state of Texas.

Keith Morrison: "You don't know where they've gone?"

Rulon and Lorene: "No."

Keith Morrison: "Have they gone to one place or more than one place?"

Rulon: "We've heard more than one."

Lorene: "We've heard rumors that they're split up."

And this very morning, Lorene tells us, was her 3-year-old's birthday.

Lorene: "He turned 3 today. His third birthday and they took his mother away."

How To Identify Victims of Child Abuse

How can you identify victims of child abuse?

As the State of Texas moved swiftly to protect 460 victims of child abuse, look no further than the common characteristics of the children taken from the Fundamentalist Church of Latter Day Saints and their Yearning For Zion 1,700 acre ranch.

These children are in such horrific danger that they are being moved as far as 500 miles away from their home, their mothers, fathers and family members, and often out of reach of their court appointed attorneys, in order to "protect" them.

The abused children all have these identifying traits (Source: Associated Press):

• They are healthy and seem happy.


• They are polite and well mannered.


• They have been raised on a diet of home grown vegetables, chicken and fresh fruit. Absolutely No Junk Food!


• The dress modestly. No low slung jeans or bare midriffs for these kids.


• They have been home schooled and are well probably ahead of the children attending public schools.


• They engage in prayers with their family every day.


• They can be any age from one month to 18 years of age or older.


• They can be boys or girls.

The exact nature of the abuse suffered by the vast majority of the 462 "children" now under the protective custody of the State of Texas can actually never be determined by any psychiatrist or other professional. It's so secret only the State of Texas will ever know what it is.

To be certain a very few girls in the FLDS sect have been forced into marriage, possibly at a young age, as young as 13. Of the 462 children taken by the State of Texas their might be fifty (50) who are or were at one time, victims of forced marriage. Maybe. Eventually the State of Texas may or may not get around to actually investigating this potential crime. Certainly no one has been charged yet.

Had the of State of Texas moved to protect those fifty young girls, it's unlikely there would have been much objection. The action might have been applauded in spite of the fact the whole raid on the Yearning For Zion Ranch was started by an easy-to-identify false report. So while the legal grounds for the armed assault on the compound might have been faulty, rescuing the girls could have made it all worthwhile.

But that's not what happened. Janet Bennion, the nation's leading expert on the polygamist sect is appalled. Bennion is a world renowned Professor of Anthropology at Lyndon State College in Vermont. She has spent months living with the sects in Utah, Montana and Mexico.

As reported by Vermont's WCAX-TV, Professor Bennion stated, "This is absolutely the wrong way to go about it. This is a group of people that are already against the government and the outside world, and then you get raided by state troops, kidnapping the children."

"If you can establish abuse, of course intervention must be made, but use an intervention that doesn't break the constitution and that doesn't violate all these civil rights laws," argues Bennion.

Some believe it's polygamy, not the alleged child abuse, that's actually on trial. Others fear it's an excuse to attack the underlying religion.

A motley assortment of almost four hundred lawyers is struggling to sort out this madness. Unfortunately, most are court appointed and come from all four corners of the state. Some have yet to meet their clients, others are simply trying to figure out where their clients have been taken.

According to Texas law none of this should be happening. But short circuiting the law has become the norm for this case.

So some of the lawyers for the parents and other lawyers for the children are attempting to restore logic and order.

ABC News reports tonight, "A state appeals court has agreed to hear arguments next week about whether the state can place the children into temporary foster care without giving each family an individual hearing."

"These families have the right to have their voices heard in the legal process," said Robert Doggett, an attorney with Texas RioGrande Legal Aid, which filed the appeal. "The idea that these children can be taken away without giving their families the opportunity to address allegations and fight to stay together is absurd."

Lawyers point out that the figurative cows are already out of the barn. Now that the children have already been scattered throughout the state, it may be nearly impossible to insure them of their rights.

HOAX

Could a deranged woman in Colorado Springs, Colorado call the police and accuse you of child abuse or rape and have the police bring an armed assault force to break into your house and take your children into "protective custody?"

That's exactly what happened this week in El Dorado, Texas. The woman, who has a long history of making false abuse claims, called long distance from Colorado. She claimed to live at the Yearning For Zion compound in El Dorado, Texas. In repeated calls that may have continued for two weeks, she accused her imaginary husband of rape.

And Texas responded in full force. They sent a veritable army. They expected a war.

Hasn't anyone in Texas ever heard of "Caller ID?" And what ever happened to old fashioned ideas like investigation?

Texas had four years to investigate the compound. A simple Google Search would have yielded plenty of information about the Fundamentalist Church of Latter Day Saints (FLDS), most important their demand that sect members practice polygamy, illegal under Texas law.

But that never happened. Instead a false claim by a very sick woman has yielded the results that critics of the sect have long desired.

The state removed all 416 children from the compound and are holding them in frankly disturbing conditions. Families are split apart and all children over the age of 4 have been forcibly separated from their parents.

Experts say this will continue for many months. The court today decided to continue the state's custody. And they ordered DNA tests in hopes of proving some children were born to mothers under the age of 16.

It's a pretty good bet that there have been forced marriages and polygamy and children born to young teens. But, lawyers tell me, it's unlikely that anyone will ever be prosecuted. No one is going to jail.

But some children may end up in foster care. And, under Texas Law, the court battles will go on for years and will likely result in many children ultimately returning to their parents, though perhaps not to the compound.

Many of my readers think that's a good thing.

I hate the fact that the State of Texas was unable or unwilling to do their job. Instead, they've made a mockery of the judicial system, and all of us are more vulnerable because of their failures.

The New York Times has an excellent investigative article here.

I encourage my readers to also read a strong opposing view presented by Utah Savage. Be sure to read the extended discussion by her readers. This is an important issue that does involve all your civil rights as well as the illegal activities and the lifestyle of the FLDS.